Volume 44 — Federal Reporter

<p>1. Jurisdictions’- — Amount in Controversy — Pleading.</p> <p>It is essential to the jurisdiction oí a United States circuit court, in any case, that the amount or value of the matter in dispute must exceed $2,000; and this must be distinctly alleged in the bill of complaint.</p> <p>3. Same — -Injunction—Matter in Dispute.</p> <p>Where the object of the suit is to restrain the use of property by a party other than the owner, the right to use the property is the matter in dispute, and the value of such right must determine the question of jurisdiction.</p> <p> (Syllabus by the. Court.) </p>

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

<p>1. Successor of Territorial Courts — Admiralty— Appeal.</p> <p>An admiralty cause having been appealed to the supreme court of Washington Territory, hut not docketed in that court prior to the admission of the state into the Union, must necessarily he transferred from the the territorial district court, which rendered the decree, to this court, which is as to all admiralty causes successor to the territorial court of original jurisdiction. Failure of the appellant to cause the transcript to he sent up and have the cause docketed in the circuit court before the beginning of the term is not such laches as to be deemed an abandonment of the appeal, there having been heretofore no opportunity for trial of the cause in the circuit court, and no actual delay.</p> <p>2. Execution — Issue after Appeal — Laches.</p> <p>The court will deny a motion for leave to issue an execution made after an appeal taken, and a considerable delay in causing a transcript of the record to be sent up, and based on an assumption that the appeal has been abandoned, when it appears that a hearing of the cause in the appellate court has not been actually delayed by laches on the part of the appellant.</p> <p> (Syllabus by the Court.) </p>

<p>1. Whits — Service by Publication.</p> <p>In a suit to determine the title to a patent-right, a non-resident defendant cannot he served by publication under the judiciary act of 1875, § 8, providing for such service in suits “to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district. ”</p> <p>2. Same.</p> <p>On a motion for service by publication on a foreign corporation, the court cannot determine the question whether it is engaged in business in the district, and therefore bound by service had on its director.</p>

<p>Fur at. Decree — Rehearing—Time of Application.</p> <p>At the term succeeding- that at which a decree dismissing an intervention on the merits, without prejudice, was rendered, there was a final decree in the main cause. Held that, even if the decree dismissing the intervention was not final at its rendition, it became final on the rendering of the final decree in the main cause, and therefore, under equity rule 88, providing “that no rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supremo court, but if no appeal lies the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court, ” a rehearing on the intervention could not be granted at tiie third term after the final decree in the main cause was rendered.</p>

<p>At Law. On motion to appoint a receiver.</p>

<p>On Motion for Preliminary Injunction.</p>

<p>National Banks — Liability of Dikisotoes — Equity .Tukisbiotion.</p> <p>Kev. St. U. S. §§ 5284, 5289, prescribing the method of enforcing the liability of the directors of national banks lor violation of the banking law, are exclusive of other remedies, and a creditor of an insolvent bank, for which a receiver has been appointed, cannot sue its directors for the purpose of making them personally liable for the mismanagement of the bank.</p>

<p>1. iNJiraoTiofr — Wasth—Disputed Title.</p> <p>A bill for an injunction to prevent the commission of waste, which shows that the plaintiff is an applicant to purchase the premises from the United States as mineral land; that his right to so acquire the title is being contested in the United States land-office; and that the defendants claim title adversely to him. — does not state a case within any known exception to the general rule, that equity will not interfere by injunction to prevent waste when the complainant’s title is disputed.</p> <p>2. Same — Intekpketation oe Statute.</p> <p>Under the rule for construing statutes, that an act of the legislature is not binding upon the state unless made so by special and particular words, a state law, authorizing an injunction to prevent waste where two or more persons are opposing claimants to the same tract of public land under the laws of the United States, is not applicable in a case in which the state is one of the claimants.</p> <p>3. Same — “Pebsoxs. ”</p> <p>The word “persons, ” when used in a statute, does not include the state.</p> <p> (Syllabus by the Court.) </p>

In Equity. On petition by defendant for an injunction to restrain the commencement and prosecution of suits against its customers and the sending of circulars to others engaged in the trade.

<p>Taxation — Foreign Corporations Doing Business within the State.</p> <p>A foreign manufacturing company which maintains an established location and an agent in New York city for the purpose of selling its products or facilitating their sale, and which keeps funds in New York city to maintain its place of business and to enable its agent to carry on his operations, is “doing business within the state” within the meaning of Laws N. Y. 1885, cc. 359, 501, which provide that every foreign corporation “doing business within this state” shall be subject to a tax on its corporate franchise or business, to be computed on the'basis of the amount of capital stock employed within the state.</p>

<p>1. Surveys of Public Lands.</p> <p>Under the land laws of the United States, the line of ordinary high tide on the •shore of an arm of the sea is the boundary between the land and the water at which the surveys of the public lands of the United States terminate.</p> <p>3. Public Lands — Location of Sckif.</p> <p>The act of congress, providing for the issuance of Valentine scrip, and for its location upon unoccupied and unappropriated public land, cannot be so construed as to authorize the entry with said scrip of mud flats bare at low tide, but subject to daily overflow, situated in one of the harbors of a territory, and which has been omitted from tlie surveys made of public lands surrounding such harbor,</p> <p> iiSyllabus by the Court.) </p>

<p>Public Lands — Unlawful Occupancy — G-rant to Raidboad.</p> <p>The inelosuro and occupancy of lands in an odd-numbered section, and within the limits of a grant to a railroad company, where the entry was made after the same had been withdrawn from sale or entry, and before completion of the railroad, or any declaration of forfeiture of the grant, by a person who, in good faith, intended to acquire title to it by purchase from the railroad company, is not made unlawful by the act of congress entitled “An act to prevent unlawful occupancy of the public lands," approved February 25, 1885, (23 U. S. St. 331.)</p> <p> (Syllabus try the Court.) </p>

Motion to Set Aside Service of the Summons. Defendant is an Alabama corporation. Summons in an action brought in the state court was served on its president, Alfred L. Tyler. That officer was a resident of Alabama, and bad no residence in the state of New York. lie was at the time of service in New York city, attending to the business of various enterprises, including the negotiation for said defendant of a certain loan upon mortgage of its property.

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

<p>1. Ejectment — Evidence—Ancient Record.</p> <p>Where it is proved that land was conveyed to J. in 1768, and has been assessed to his heirs ever since 1805, the original tax-lists of the town for the intervening years are admissible in evidence to show that J. was assessed for said land dnring said years, where such lists show that J. was assessed for land in said town, though they do not identify the land.</p> <p>2. Same — Presumption of Deed.</p> <p>Where the question is whether a deed is to be presumed from long possession and claim of title, evidence that the claim of the adverse claimant was notorious in the community, and that, more than 60 years after the deed, if -there was a deed, was given, such claimant was too poor to sue, is irrelevant.</p> <p>3. Same — Defenses.</p> <p>The attempt by a defendant in ejectment to prove that the will under which the plaintiff claims is invalid does not prevent him, on a second trial of the cause, to set up the defense of a presumption of a deed to his grantor.</p> <p>4. Adverse Possession — Presumption of Deed.</p> <p>There is no absolute bar against the presumption of a grant within a period short of the statute of limitations.</p> <p>5. Same — Possession.</p> <p>Occasional interruptions of possession during the period necessary to create a title by adverse possession, which do not impair the use to which the occupant subjects the property, and for which, it is qhiefly valuable, will not necessarily defeat the presumption of a grant.</p> <p>6. Same — Evidence.</p> <p>It is sufficient ground for the presumption of a grant to show that, by legal possibility, a grant might have issued, though the probability of its existence is not established.</p> <p>7. Same.</p> <p>The facts that defendants and those from whom they derive title have claimed the land for more than 100 years; that during that time they have paid taxes on it; that for a long period of time they exercised acts of ownership over it; and that for more than 20 years they have actually used the land, — are sufficient to justify the presumption of a deed.</p> <p>8. New Trial — Misconduct of Jury.</p> <p>The fact that two of the jurors during the trial of a cause read the opinion of the supreme court, rendered on appeal from a former judgment of the cause, is not ground for a new trial, where it clearly appears that the opinion was not furnished by or at the instigation of the successful party, and that the opinion was not taken into the jury-room or laid before the jury.</p> <p>9. Same — Affidavits of Jurors.</p> <p>Affidavits of jurors are admissible, on motion for new trial, to prove, in support ■of the verdict, that a certain paper was not laid before the jury or read by them.</p>

<p>Proceedings for Contempt.</p>

<p>At Law. Motion for bill of particulars.</p>

<p>1. Railroad Companies — Killing Child on Track — Evidence.</p> <p>In an action against a railroad company for the killing of a child, a witness for plaintiff testified that the engineer saw the child on the track in time to prevent the accident; that witness called to the engineer to stop when the tender of the backing engine was within six feet of the child; and that the engine was going very slowly, and could have been stopped wiljhin four or five feet. Reid, that the evidence was sufficient to sustain a verdict in plaintiff’s favor, though substantially denied by the engineer and a switchman in defendant’s employ, who both testified that it was impossible for the engineer to see the child; that no warning of its presence was given until the tender was within three to five feet of the child; and that the engineer immediately reversed the engine, but did not succeed in bringing it to a stand until it had run eight feet, and killed the child.</p> <p>2. New Trial — Excessive Verdict.</p> <p>A verdict of $2,500 in favor of the parents, for the killing of a healthy, sprightly, five-year-old child, does not clearly show thal the jury committed some palpable error, or totally mistook the rule of law by which the damages are to be measured, or were swayed by passion and prejudice, so as to warrant the court in setting aside the verdict as excessive.</p>

<p>Judgment — Res Judicata — Pakty not Served.</p> <p>A judgment in favor of one or more joint contractors is no bar to a suit against another of the joint contractors, who neither voluntarily appeared nor was served with process in the first action, and who was not within tho jurisdiction of the court trying the same.</p> <p>Noth by Judge Nelson. Consult Mason v. Eldred, 6 Wall. 231; Detroit v. Houghton, 42 Mich. 459, 4 N. W. Rep. 171, 2S7; McLelland v. Ridgeway, 12 Ala. 482; Bank v. Robinson, 13 Ark. 214; Hall v. Lanning, 91 U. S. 160; Brown v. Birdsall, 29 Barb. 549; Board of Bub. Works v. Columbia Coll., 17 Wall. 521.</p>

<p>Customs Duties — Opera-Glasses.</p> <p>Opera-glasses are dutiable as “ articles composed in part of metal ” under the last clause of the metal schedule, (Heyl, Dig. 216,) and not as non-enumerated articles under the similitude clause of section 2499, (Heyl, Dig. 823,) the metal frame being a, necessary and important part of the opera-glass, whether we regard size or value.</p>

At Law. Plaintiff sought to recover the duty upon the cost of winding worsted and mohair yarns into sltoins.

At haw. This suit was brought to recover hack duties upon certain coverings and paper boxes in which cups and saucers were imported. The invoice described the articles as decorated china-ware. They were entered under the name, and duty paid thereon. The appraiser returned the coverings as “unusual” coverings, and subject to duty of 100 per cent. ad valorem.

<p>Petition of Matilda Hare, as Administratrix.</p>

<p>Patents fob Inventions — Jeweley Pins — Novelty.</p> <p>A design for jewelry pins, consisting of a piece of metal in the shape of a spoon or fork two inches long, precisely similar in appearance to common spoons or forks six inches long, lacks the novelty necessary to support a patent.</p>

<p>1, Patents for Inventions — Valves eor Pneumatic Pipes -t-Noveett — Invention.</p> <p>Claim 1 of letters patent No. 101,680, granted to Edward S. Boynton, April 16, 1889, for an improvement in valves for pneumatic pipes, was “in combination with an external pivoted valve, a compressive helical spring inclosed within a tubular guide formed upon or attached to the valve. ” In a device for coupling the pipes between railroad cars previously patented, the valve was made to hold the coupling, or to fly shut by means of a torsional helical spring. Held, that the combination of claim 1 was but the substitution of a compressive helical spring for the torsional spring of the older structure, with the limitation that the tubular guide must be attached to the valve, and that such claim was void for want of novelty.</p> <p>2. Same.</p> <p>The second claim of such letters patent was limited by stating that the tubular guide must be attached to the valve between one end of the guide and a stop at the pivoted point of the valve, and thus insured a neat, compact, and cheap structure, besides safety and durability. Held, that the device involved invention, and was valid.</p>

<p>1. Patents for Inventions — Damages fob Infringement.</p> <p>Defendants who infringed a patented valve by the manufacture of valves commercially worthless hut for the infringed invention, are liable for the profits realized by them, though the form of their valves is different from those manufactured by complainants.</p> <p>B. Same.</p> <p>Where the valves manufactured by defendants also infringed another later patent, likewise owned by complainants, no injustice is 'done defendants in acceding to complainants’ claim that all profits realized by defendants during the life of the, earlier patent were solely due to the invention covered by that patent, especially in view of the fact that defendants contended that the invention embodied in the later patent is worthless; and hence, in an action for the infringement of the earlier patent, it is unnecessary for the master to find how much of defendants’ profits are due to the later invention.</p> <p>3. Same — Bstojtee.</p> <p>Complainants, after contending for and accepting a finding, in an action for the infringement of the earlier patent, that defendants’ profits, arising from the manufacture and sale of valves infringing both patents, were due solely 1.o the earlier invention, cannot be permitted to recover more than nominal damages in an action tor the infringement of the later patent alone, brought after the expiration of the earlier one.</p>

<p>1. Patents for Inventions — Fire-Alarms—Reissue.</p> <p>Letters patents issued July 13, 1875, to Robert Bragg, for the combination with afire-alarm gong of mechanism which automatically releases the fire-engine horses from their stalls, contained the following claim: “The rod with its knob and the oscillating lever, for the purpose of releasing a suspended weight by the direct action of a gong-hammer. ” The reissued patent, No. 6,831, issued January 4,1876, contained these claims: “The trip-rod and oscillating lever, for the purpose of releasing a suspended weight by the movement of a gong-hammer," and “the trip-rod, oscillating lever, and suspended weight in combination with the hammer of a gong, for the purpose of operating mechanism distant from the gong. ” Held, that the claims of the reissue were fairly embraced in the claim of the original.</p> <p>2. Same — Infringement.</p> <p>Said patent is infringed by a device whose only difference from the patented machine is that its trip-rod receives the stroke of the hammer in its backward instead of its forward motion.</p>

<p>Patents for Inventions — -Extent of Claim — Riding Attachment fob Plows.</p> <p>On a bill to restrain infringement of letters patent No. 284,036, for “a riding attachment for plows, ” complainant contends that the patent covers a combination of three wheels so arranged as to carry the downward pressure of the plow upon the earth, and thus reduce friction and lighten the draft, and also prevent the packing óf the earth at the bottom of the furrow. The object actually sought, as stated in the specifications, was “to provide a simple, strong, durable carriage attachment for plows that can be more readily applied add adjusted to operate a plow steadily, and to regulate the depth an4’width of furrow slices-by the operator seated upon the carriage. ” The idea of diminishing friction by carrying the plow was not hinted at in any oi the claims or specifications, and while the throe wheels necessary therefor were shown by the drawings, one of them, attached to the end of the plow-beam, was'not referred to in either the claims or specifications. Held, that the combination for the purpose claimed is not covered by the patent, and if complainant was the first to úse it he is presumed to have dedicated it to the use of the public.</p>

<p>1. Patents fob Inventions — Novelty.</p> <p>The following specification of patent No. 363,679, granted May 10,1887, to George W. Taft, is'not void for want of novelty: “(13) In a machine for making roads, the combination of a carriage or body frame, supported on front and rear traveling wheels, a diagonally disposed scraper-blade extending across and supported beneath said body-frame, and an extended longitudinally adjustable rear axle, whereby one of the rear traveling wheels can be projected laterally beyond the working line of said diagonal scraper-blade, for the purpose set forth. ”</p> <p>2. Same — Infringement.</p> <p>Though, in addition to this long lateral, movable axle, the machine patented has a device for adjusting the frame on the axle by means of a rack and pinion, the patent is infringed by a machine having the long hind axle, on which the frame is fastened by clamps held in place by nuts, the loosening of which enables the operator to shift the frame on the axle.</p>

<p>Patents for Inventions — Ceiiluloid—Inekingement.</p> <p>Letters patent No. 199,908, issued to the Celluloid Manufacturing Company for imnrovementin the manufacture of sheets of celluloid, consisting in the use of a slab of celluloid fastened upon a grooved plate through the operation of the contractile energy of the celluloid in cooling acting upon two or more elevations or depressions in the nlate, so that the mass of celluloid is held firmly in place while being planed off into thin sheets, is not infringed by a device by which the celluloid is held on a supporting base by means of atmospheric pressure.</p>

<p>1. Coij.ision — Between Tow and Dkaw-Bbidge — Liabilitt of Tire.</p> <p>Libelant’s schooner was proceding up the Chicago river in tow oí a tug at a safe speed. The tug in duo time whistled tor the opening of a bridge, and the bridge tender rang the bell to indicate that it would be opened. On trying to swing the draw, he discovered that the loch was out of order, and, instead of hoisting the customary signal to show that he could not swing the draw, he stopped to investigate the condition of the lock, and did not signal the tug until it was too near the bridge to bo able to stop the schooner, the tug having been approaching, at the same speed, as there was yet time to swing the draw, had it been in good order, when the tender signaled his inability to do so. The tug, casting oft the schooner, passed under the bridge, while the schooner collided with it, and injured her masts. There was evidence that the city superintendent of bridges had notice of the defective condition of the lock. Held, that the tug was not in fault for not slacking its speed as soon as it discovered that the draw was not swinging, and the city is solely liable for the collision.</p> <p>3. Same — Signals to Open'Bkidge — Answer.</p> <p>Though the ringing of the bell on the bridges across the Chicago river, just before the draw is swung, is intended as a signal to persons on the street and bridge, it may be treated by an approaching vessel as an answer to her signal to open the bridge, and she is not in fault in proceeding on the strength of it, although the draw may not be swung immediately.</p>

<p>1. Salvage — Fire in Oil Cargo.</p> <p>A vessel, loaded with case oil and ready for sea, caught fire about 12 o’clock at night, while lying anchored in the harbor of New York. A passing tug went to her assistance, at the same time signaling for more help. Her signals collected seven other tugs and a ferry-boat, all of the available boats in the vicinity, and lastly came the police-boat Patrol, which had been sent for by the first tug to arrive. All of these boats pumped water on the fire, and extinguished it at about 5 o’clock in the morning. But 283 out of the 55,600 cases of oil were damaged. The saving to the owners of vessel and cargo, without considering freight, was $81,400. There was no extraordinary labor or exposure or peril to life. Held, that the salving vessels should collectively recover $20,000 as salvage.</p> <p>2. Same — Imminent Peril — Promptness of Salvors.</p> <p>At the outset of the fire moments being of the greatest importance, the salvage was divided among the tugs with reference to the time of their arrival at the scene of the fire, and also their capacity for pumping.</p> <p>3. Same — Perry-Boat as Salvor.</p> <p>When a ferry-boat abandons a regular trip to go to the aid of a vessel in distress, the peculiar nature of her employment is to be considered in determining the amount of her award.</p>

<p>Wharves and Wharfingers — Concealed Obstbuctions — Liability to Vessel.</p> <p>In a suit against a wharfinger for damages alleged to have been occasioned to a vessel at the wharf by reason of obstructions under the water, the fact of the existence of such obstructions, and that the damage was occasioned by them, must be clearly proved before the ship-owner can recover.</p>

<p>1. Admiralty — Monition —Default.</p> <p>"Wbore a libel has been filed against a vessel, and on the return-day of the monition the owner of the vessel did not appear, and his default was duly entered in the cause, such default amounts to a formal admission by him of the truth of the allegations of the libel, and a lien in favor of the libelants attaches to the proceeds of the vessel, which has been sold in the mean time under a decree in a prior suit for seamen’s wages.</p> <p>2. ¡Shipping — Bottomry Bonds — Authority of Master.</p> <p>In a contest between the administrator oí the owner and libelants, in a suit to recover the amount of a bottomry bond, who, by the owner’s default, have acquired a lien on the proceeds of the vessel sold in another suit, a letter of the owner, denying the right of the master to execute a bond “for so large an amount, ” is an admission that the master was justified in executing a bottomry bond, and the burden is. on the administrator to show that it was for a larger sum than, was required by the necessities of the vessel.</p> <p>3. Admiralty — Sale of Vessel — Payment of Proceeds to Proctors.</p> <p>Where proctors, who filed a libel 30 years before, apply for the proceeds of the vessel deposited in the registry of the district court, assuming to act under their original authority, and it is shown that the sole survivor of the libelants, when last heard from, several years before, was an old man, and “very much of a floater, ” somewhere in Brazil, the proceeds will not be paid over without a further application, by which it may be shown that there is some person in existence who is legally entitled to receive them.</p>

<p>Shipping — Liability op Vessel. bob Tobts — Scalding Boileb-Gleanek.</p> <p>Where the master of a steam-ship employs a contractor to clean the inside of her boilers, tho ship is liable for injuries suffered by t.lie contractor’s employe, while engaged in the work, by the negligent escape of steam and hot water into tho boiler, whether those in charge of the steam let it escape or it was done by some meddling stranger in consequence of the negligent supervision of those in charge.</p>

<p>1. Shipping — Contract op Affreightment — Amount of Cargo Delivered — Lump Sum.</p> <p>To tafee the case out of the rule that freight is payable only on the packages delivered, the language of the carrier’s contract must express such intent with reasonable certainty.</p> <p>2. Same — Bill of Lading — Stipulation as to Freight.</p> <p>A bill of lading provided for freight at. the rate of 32/6 per ton, “to be paid on right delivery as customary as per memo, in the margin, ” the memorandum, in the margin being: “Imperial gallons 6,052, at 210 galls.per ton, equals 28.819; @ 32/6 per ton, £46.16.7. ” Held, that the stipulation was not such certain contract for payment of a lump sum as to entitle the carrier to recover the full amount of the freight, on a short delivery, occasioned by twice discharging at ports of distress through perils of the sea.</p> <p>3. Same — Cargo-Owner—Allowance in General Average — Inclusive op Freight.</p> <p>An allowance in general average was made to a cargo-owner for 18,000 lbs. of oil lost by sea perils, the value being calculated on the basis of the New York price, which would include the freight to New,York. Held, that the ship was entitled to recover the freight on the 18,000 lbs.</p>

<p>Bill of Lading — Agent as Consignee — Freight According to Value — Concealment of Value.</p> <p>A bill of lading recited that additional freight should be payable on the total value of certain precious stones should their real value be discovered to be greater than was declared in the bill of lading; and the consignee received the goods and paid the freight according to the value stated in the bill of lading, and entered them at the custom-house under the bill of lading, and under an invoice that stated their value at a much greater sum than'that made in the bill of lading. Held that the stipulation for additional freight upon the actual value was valid, and that the consignee was liable for the additional freight, though" he was but an agent employed by the shipper to .sell the goods on commission.</p>

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

<p>1. Shipping — Assault by Master — Damages.</p> <p>In a suit In personam by a cook against the master of an American vessel, upon proof that the master punished the cook for willful disobedience on board of the vessel in port, by assaulting and striking him upon his head with a belaying-pin, seriously injuring him, the court awarded as damages SI,500, besides the value of personal effects lost in consequence of the injury.</p> <p>2. Same — Power to Punish.</p> <p>In- such a case, the assertion by the master of the lawfulness of such punishment will be regarded as an aggravation rather than a defense; a resort to the use of a weapon or violence being only'justifiable when necessary to enforce instant obedience in a case of emergency at sea.</p> <p> (Syllabus by the Cov/rt.) </p>

<p>In Admiralty. Suit to recover freight and demurrage.</p>

<p>In Admiralty.</p> <p>Petition by Clarence Birdsall et al., owners, to limit the liability of the schooner Agnes Manning for collision with the steamer Manhattan, and libel by the Manhattan against the Manning. The admitted facts were that the Manning, a large four-masted schooner from Baltimore to New York, and making 7 to 10 knots, and the steamer Manhattan from New York to West Point, Va., making 10 to 12 knots, collided, near Fenwick light. The steamer’s evidence tended to show that the schooner was seen when three-fourths of a mile off, and that the steamer ported, bringing the vessels on clearing courses, and that after the steamer ported the schooner starboarded, bringing the vessels into collision. The schooner admitted starboarding, but claimed it was done when the ves-seis were far apart, and that the changes then made were slight, and that tho steamer ported only immediately b'efore the collision. The evidence showed that there was only one lookout (throe men altogether) on the steamer’s deck at the time of the collision, and that the porting was done very rapidly, the pilot and the wheelman both turning the wheel.</p> <p>As to the duty of an ocean-going steamer to have two lookouts: The Colorado, 91 U. S. 692. The duty of the steamer to see the schooner: The Ábby In-galls, 12 Ted. Rep. 217; The Falcon, 19 Wall. 75. As to the evidence necessary to show contributory negligence by the schooner: Raney v. Packet Co., 23 Ilow. 291. As to a change of course of tho schooner, if made after porting of the steamer, being made in extremis: The Maggie •/. Smith, 123 U. S. 355, 8 Sup. Ot. Rep. 159; The Elizabeth °Jones, 112 H. S. 514, 5 Sup. Ct. Rep. 468; The Cadiz, 20 Ted. Rep. 157; The Norwalk, 11 Ted. Rep. 922;. The Reading, 43 Ted. Rep. 398.</p>

<p>Collision — Ferry-Boat and Tow — Crossing Cookses.</p> <p>A tug, with several boats in tow along-side, came down the North river, rounded to, and lay about 350 feet from the New York piers, holding herself against the ebb-tide, and waiting for the steam-boat City of N., which was coming up astern, to pass inside of her. While so waiting, a ferry-boat, bound from Jersey City to New York, attempted to pass between the tow and the City of N., and her paddle-wheel struck the outside boat on the starboard side of the tug, causing it to sink. Held, that the ferry-boat was liable for the damage.</p>

<p>Courts — Jurisdictioxal Amoustt — Protest Pees.</p> <p>Protest fees are taxable costs witbin .Rev. St. U. S. | 983, providing that “lawful fees for exemplifications and copies of papers necessarily obtained for use on trials ” shall be taxed as costs; and though Comp. St. Neb. c. 41, | 6, provides that the holder of a note may bring “an action for principal, damages, and interest, and charges of protest, ” yet'such fees for protest cannot be considered as part of the “matter in dispute ” within Act Cong. March 3,1887, §1, (24 St. 552,) as corrected by Act Cong. Aug. 13, 1888, (25 St. 434,) restricting the jurisdiction of the United States circuit court to suits “where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of S2,000. ”</p>

<p>In Equity. Motion of George E. Downs to set aside substituted service of process.</p>

<p>1. Creditors’ Bilí, — Distribution oe Proceeds — Lies or Taxes.</p> <p>Where i ho federal courts have appointed a receiver of the properly of ajudgmont debtor in Missouri, and have ordered the property sold, and the receiver has been in possession thereof during the time when a levy might have been made thereon for taxes on the personalty, the court will direct the payment of such taxes out of the proceeds oí the sale in preference to all other claims, though the sale was ordered to bo made “subject to all liens for taxes, ” as taxes on personalty are not a lien thereon until levy under the tax-bill, in Missouri.</p> <p>a. Same.</p> <p>But as the state has a paramount lien for taxes on realty, and the sale was subject thereto, such taxes will not be ordered paid out of the proceeds.</p> <p>8. Hom — Who may Shake rx Distribution.</p> <p>Where the proceeds of a sale of a debtor’s property on judgment creditors’ bill are insufficient to pay the judgment creditors, and there has previously been no applies lion to the payment of judgment creditors of any of the debtor’s property which should have been applied to the payment of open accounts, the holders of such accounts cannot participate in the proceeds of the sale.</p> <p>4. Sam h — Intervention.</p> <p>Where a bill to reach property which cannot he effectively Touched at law is filed by certain judgment creditors for the benefit of all judgment creditors of defendant, and no order is made requiring others to intervene by a certain time or bo barred of their rights, all judgment creditors who choose to intervene may share ratably with complainants in the proceeds of a sale of the property, even though some do not intervene until after the interlocutory decree ordering the sale.</p> <p>5. Same.</p> <p>Jt does not affect the right of such subsequent int'ervenors to share ratably that the bill prays that after a sale the proceeds may be distributed among the persons in whose behalf the suit is brought “ according to their respectivo rights and equities, ” where the original complainants and prior intervenors had no prior lien on all the property sold when the bill was filed.</p>

<p>1. Injury to Employe — Contributory Negligence.</p> <p>The only way for getting into the hold of the vessel whioh libelant was employed in loading was by a ladder, so placed in a hatch that to reach it one was obliged first to step onto the steam-winch used in lowering the freight. The winch was out of repair, so that it would not quickly obey the lever, and was unreliable in holding a suspended load. Libelant, without giving any notice, or making any inquiry, stepped on the winch while a load was suspended on the tackle. His stepping on the winch, together with the suspended load, set it in motion, from which he received severe injuries. Libelant knew, or should have known, that it was customary to lower the freight part way, and then hold it until those below were ready for it. Held that, though it would not have started had it not been out of repair, libelant was still guilty of contributory negligence.</p> <p>2. Same — Defective Appliances — Liability oe Vessel.</p> <p>Though the ship had been chartered for a lump sum, and by the charter-party, the charterers were to pay the stevedoring and the loading, still the owners of the vessel, having by the charter-party contracted to furnish the use of tackle in loading. and to afford charterers the same accommodation as if the ship had been loaded by the -pound, were bound to the charterers, and the charterers’ agents, the stevedore and his employes, to furnish proper machinery and tackle, and to use proper care to keep it in order.</p> <p>3. Same — Contributory Neglisence — Division 6e Damages.</p> <p>In admiralty, contributory negligence on the part of libelant is not a bar to his recovery for personal injuries, but both parties being at fault the damages are apportioned.</p> <p>4. Same — Negligence oe Fellow-Servants.</p> <p>The fact that libelant’s fellow-servants were negligent, will not prevent recovery, there having been negligence on the part of the ship.</p>

<p>Error to district court.</p>

<p>1. Conspiracy — Violating- Census Laws.</p> <p>Persons who conspire to commit the acts made misdemeanors by section 13 of the census act, (Act IT. S. March 1, 1889,) with another person who is capable of committing the offense defined therein, may be punished under Rev. St. TJ. S. § 5440, which provides that if two or more persons conspire to commit an _ offense against the United States, and one or more do any act to effect that object, all shall be liable to a penalty, though they themselves are incapable of committing the offenses defined in section 18. ‘</p> <p>2. Same — Indictment.</p> <p>In an indictment for conspiring with a census enumerator to insert a certain number of false and fictitious names in the census schedules, it is sufficient to state a few only of the names alleged to have been so wrongfully inserted by the enumerator, as certainty to a common intent is all that is required in an indictment for conspiracy-</p> <p>Note by Judge. The doetuno announced in this opinion, and the rules of law therein stated, apply to the demurrers to indictments in all the Census Conspiracy Cases.</p>

<p>1. Patents foe Inventions — Bile to Restrain Infringement — Pleading-.</p> <p>A bill to restrain the infringement of a patent must either set out the patent, or attach it, as an exhibit, or give a substantial description of the invention, else it is open to demurrer.</p> <p>2. Same — Surplusage—Exceptions to Bill.</p> <p>A clause in the bill averring that, when complainants’ application was on file, another for a patent on the same device was also filed, and that upon interference declared the patent was awarded to complainants, but that a subsidiary and infringing patent was also awarded on the other application, under which patent defendant pretends to be manufacturing, is mere surplusage, that cannot be reached by demurrer, but by exceptions to the bill.</p>

<p>Negmgence — personal In,tuky — Damages.</p> <p>By admitted negligence, libelant, a sailor, 33 years old, anda soundman, earning from 512 to 520 per week, sustained a fracture of the ankle, and a rupture, which confined him to the hospital for 85 days, and permanently injured him, and incapacitated him for heavy work. Held, that he should recover 55,500.</p>

<p>Collision — Steam and Sailing- Vessel — Change of Codesb.</p> <p>The tug Transfer No. 4, with a oar-float on her port side, left Harlem river in the night, hound foi Jersey City. The tide was ebb! She took the usual course on such a tide, crossing from the upper point of Blackwell’s island to .the Long island side, and went down the channel on that side. A schooner was coming up the' middle of the channel, with a fair wind. As she neared the tug, she ported, ran to within 100 feet of the Long island shore, and collided with the tow. Held, that the causé of the collision was the schooner’s change of course, and the tug was not liable.</p>

In Equity. On motion to remand. This was a suit in the nature of a creditors’ bill, brought in a state court by citizens of the state of Texas against the San Antonio & Aransas Pass Railway Company, a corporation of that state. The Farmers’ Loan & Trust Company is a citizen of the state of New York, and the trustee under a mortgage on the railroad. A receiver having been appointed by the state court, the trust company intervened, and removed the cause.

<p>Corporations — Issue op Bonds — Validity—Estoppel.</p> <p>The Corry Water-Works Company, a corporation of the state of Pennsylvania, in accordance with a contract for the construction of its works, and with the consent of all its stockholders, expressed by vote at a meeting called only for the purpose of increasingits stock, issued to the contractors who built the works, in settlement, its bonds, payable to bearer, amounting to $100,000, secured by a trust mortgage, and also $125,000 of stock. The contractors sold the bonds before maturity, iñ the open mai-ket, for a large price, the purchaser having no knowledge of anything affecting their validity. Upon default in payment of interest, the mortgage trustee, under a power conferred by the mortgage, was proceeding to sell the mortgaged property, when the plaintiffs, who had acquired some of the stock so issued to the contractors, filed a bill to enjoin the sale upon the grounds that the debt was not authorized by a previous meeting and consent of the stockholders, as prescribed by section 7, art. 16, of the constitution of Pennsylvania, and the law of the state; that, in violation of the law, the amount of bonds issued exceeded one-half of the capital stock paid in; and that by the issue to the contractors there was a fictitious increase of indebtedness and stock, in violation of said constitutional provision Held, (1) That as all the stockholders of the water-works company when assembled voted in favor oí the issne of the bonds, neither the corporation nor the plaintiffs had any standing to complain of a want of compliance with the directions of the constitution and statute, as to previous notice to and the consent of the stockholders at a meeting called for the purpose. (2) That the corporation having received and enjoyed the fruits of its mortgage bonds, it was not competent for it, or the plaintiffs, to assail their validity in the hands of a bona fide, purchaser for value, on the ground that the issue was in excess of one-half the capital stock paid in. (h) That as the proofs show that the actual expenditure by the contractors was greatly in excess of the whole issue of bonds, there is really no ground for the assertion that the indebtedness so created was fictitious; and if the construction contract. as a whole, offended against the constitutional and statutory provisions here invoked, the corrective power resides in the commonwealth, which alone can now complain of the completed transaction. (4) That the bill of complaint should be dismissed.</p>

<p>1. Arbitkation and Awakd — Misconduct ok Abbitbatobs.</p> <p>An award made by an arbitrator, or an umpire between two arbitrators, as to the amount oí loss upon a stock oí goods damaged by fire, without any examination of the goods themselves, but merely from bills, invoice books, and inventories, is invalid.</p> <p>3. e Same.</p> <p>An award made by an arbitrator not upon his own judgment or by reason of any investigation which he has made, but solely at the direction of one oí the parties, is invalid.</p> <p>3. Same — Vacating Awakd.</p> <p>Code Civil Proc. Mont. §§ 459-468, which provide for submitting causes to arbitration, regulates the conduct of arbitrators, and provides for vacating the award by motion upon grounds specified therein, do not apply to a submission and award which is not made a record of the court.</p> <p>4. Same — Jurisdiction in Equity.</p> <p>But, even if the Montana statute does apply to such a case, it cannot deprive the federal courts of any jurisdiction which they may have under the judiciary act of 1879 to entertain a bill in equity to set aside the award, since the statute was passed after the judiciary act.</p> <p>5. Same — Action on Award.</p> <p>In an action at law upon an award, no defense can be made upon the merits of the award, but only upon matters affecting the jurisdiction of the arbitrators; and, as a legal defense would not be an adequate remedy where misconduct in mailing the award is charged, a court o'f equity would have jurisdiction of a bill to set it aside.</p> <p>6. Equity — Pleading—Multieariousness.</p> <p>Where a number of insurances companies, affected by a loss, join in submitting to arbitration the question of the amount of damage, and a single award is made, a single bill brought by all the companies as parties plaintiS to set aside the award is not multifarious.</p> <p>7. Courts — Jurisdictional Amount.</p> <p>Where it appears from the bill that the amount of insurance given by each of the plaintiffs exceeded $3,000, and there is nothing to show that the loss was to' be apportioned pro rata to the amount of each policy, the court cannot presume that such was the case, and has jurisdiction as to each plaintiff, even though the total insurance exceeds the loss fixed by the award, since the insured might select certain of the policies, and sue upon them for their full value.</p>

<p>National Banks — Taxation of Stock.</p> <p>Under Rev. St. U. S. § 5219, providing that shaves of national bank stock may be taxed as part of the personalty of the owner, and that each state may tax them in its own manner, except that the taxation shall not be at a greater rate than is imposed on other monej'ed capital owned by citizens of the state, a state may tax national bank shares held by its corporate or individual citizens as an investment, subject to the restriction that the tax shall not exceed the burden upon similar property in the state.</p>

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

<p>Deposition — Suppression</p> <p>A commission, to take testimony duly issued and exeouted under Eq, Rule 67 will not be suppressed because, when received by the clerk, the envelope containing the testimony was open at one end, presenting the appearance ot having been worn in the mail, the clerk having noted the facts on the package and filed it, since which time it has remained undisturbed in his office.</p>

<p>Taxation — Assessment—Alteration or Return.</p> <p>The unauthorized alteration by assessor oí tax-payer’s return for assessment, made according to original survey, to a description in now survey, whereby acreage of lots returned are decreased, and lots are added to cover balance, and assessed to unknown, without notice’, and a payment on lots as returned, with offer to pay all taxes due, invalidates sale oí such added lots.</p> <p> (Syllabus by the Court.) </p>

<p>1. Evidence — Government Documents — Certified Copies.</p> <p>Though certified copies of the boohs and accounts of the treasury department are by statute made evidence in favor of the government in actions against alleged delinquents, they are not conclusive, and, if a reply is made thereto, the case is to be decided on all the evidence.</p> <p>2. Indian Agents — Action on Bond.</p> <p>In an action on an Indian agent’s bond for failure to account for property alleged to have come into his hands, the government is not required to show that the agent has converted the property or proceeds thereof to his own use, but it may recover whatever loss it has sustained by his failure to account as required by his bond.</p> <p>8. Same.</p> <p>Where the government has lost nothing by such failure to account, it can recover nominal damages only.</p> <p>4. Same — Burden of Peooe.</p> <p>The burden of proving the amount of its loss is on the government.</p> <p>5. Same — Evidence.</p> <p>The fact that certain articles have been omitted from the agent’s quarterly report is only ‘prima facie proof that they have been lost to the government, and may be overcome by proof that they were at the agency at that time.</p> <p>6. Same.</p> <p>An Indian agent who has given bond to faithfully discharge the duties of his office is not responsible for the negligence, error, or breaches of duty of doctors and clerks furnished by the government, unless by reasonable diligence he could have prevented such negligence, errors, or breaches of duty.</p> <p>7. Same.</p> <p>Where the government fails to furnish the agent aclerk, he is responsible for the performance of the clerical duties of the agency in the best way practicable for him alone.</p>

<p>Interest Coupons — Splitting Causis op Action.</p> <p>Interest coupons attached to negotiable bonds are distinct and independent, promises to pay the interest installments, and a recovery on. one is no bar to a suit on another, though the latter was past due when the first action was brought.</p>

<p>1. Contracts — Construction.</p> <p>Plaintiff and defendant, stockholders in a corporation, agreed that,- in case the corporate property should be sold under a certain trust-deed, they or either of them would buy it at the sale, for their joint interest, each to pay in proportion to the stock owned by him, or be barred from any share. Defendant purchased the property at the sale, and took a bill of sale to himself, and plaintiff failed to pay any part of the purchase price. Held, that defendant took an absolute title for his own benefit, but if he subsequently agreed with plaintiff that each should try to sell the property, and divide the proceeds under the former agreement, and that, if they failed to sell within a reasonable time, payment should be made as provided in the former agreement, the title inured to both in proportion to their respective amounts of stock.</p> <p>3. Same.</p> <p>If such second agreement was made, and the property was afterwards sold by defendant, the valuation placed by him and the purchaser from him at that time on certain corporate stock received in payment for the property is binding on both him and plaintiff.</p> <p>3. Release and Discharge — Estoppel—Deceit.</p> <p>A receipt given by plaintiff to defendant in reliance onrepresentations made by defendant to him as to the amount of the consideration whiou defendant received for the property does not estop him to reopen the account between himself and defendant, and recover the amount found justly due him, if defendant’s representations were false.</p>

<p>L Indian Country — What Constitutes — Federal Jurisdiction.</p> <p>Act Cong.,Feb. 19,1875, (18 St. at Large, p. 330,) provided for the appointment of commissioners to survey and establish proper boundaries for the villages upon the Cattaraugus and Allegany Indian reservations-in New York, and declared that all Indian leases within such limits should be valid, and that all municipal laws and regulations of New Yorkmight be extended over such villages. The boundaries were thereafter established, and the villages incorporated, and the general laws of New York were, by statute, (Laws N. Y. 188L, c. 188,) extended over such villages. Held, that one of such villages was not “Indian country, ” within the meaning of Rev. St. U. S. § 2139, prohibiting the introduction of spirituous liquor into “the Indian country. ”</p> <p>2. Same.</p> <p>Irrespective of the act of 1875, such villages cannot be considered “Indian country, ” within the meaning of section 2139, as Act Cong. June 30,1834, which was a revision of former acts regulating trade with Indian tribes, and which contained the provision now embodied in section 2139, in describing what lands should be deemed “Indian country” for the purposes of the act, included only lands outside the territoi'ial limits of any state then existing, and, by providing that “the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States * * * shall extend to the Indian country, ” showed that by such country was meant territory “within the sole and exclusive jurisdiction of the United States. ”</p>

<p>Banks and Banking — Contract to Pat Dkatcts — Statute op Frauds.</p> <p>Tn February, 1833, plaintiff bank wrote to the defendant bank: “G. was at our office to-day, and arranged for us to cash his stock tickets, and draw on him for the amount and exchange with the tickets attached. Ho referred us to you, saying you would say such drafts would he paid through your bank all right. Please advise us regarding it and oblige. ” Defendant replied February 19, 1883: “We will pay your drafts on G. with his stock tickets attached. ” Thereafter the plaintiff cashed such of G.’s stock tickets as wore presented, and drew on him for the amounts, and forwarded the drafts with the tickets attached for collection of defendant. Those transactions took place two or three times a week, and sometimes less frequently. The drafts varied from 8300 to 813,000, and the aggregate from February 19, 1883, lo November 8, 1888, was over 8000,000. The defendant paid the drafts and charged them to G„ whether his account was good for them or not-, but It refused to pay the two drafts in suit drawn November 7 and 8, 1888, for 8389.93 and 81,789.00, respectively. Held that, considered with reference to the situation of the parties, and their subsequent acts evincing their own understanding, the letter of February 19, 1883, must be construed as a continuing promise, and not merely as one to pay drafts for stock tickets which the plaintiff had already cashed, or arranged to cash; and that the consideration was sufficiently disclosed to satisfy the statute of frauds.</p>

<p>Petition for Writ of Habeas Corpus,</p>

<p>On Demurrer to Indictment.</p> <p>The first count of indictment is as follows: “That Lee M. Byrne, late,” etc., “at,” etc., “heretofore,” etc., “being then and there a person employed in a department of the postal service of the United States,— that is to say, a clerk in the post-office of the United States at Piedmont, in the state of Missouri, — unlawfully and feloniously did then and there secrete, embezzle, and destroy a letter then and there intrusted to him, said Lee M. Byrne; and that came into his possession as such post-office clerk, and which said letter was then and there registered matter, and intended to be conveyed by mail, and forwarded through said post-office at Piedmont, and delivered to one Mrs. S. M. W., to whom said letter was then and there addressed, at the post-office of the United States at the city of Detroit, in the state of Michigan, which said letter then and there contained the certain articles of value, that is to say, one United States treasury note X of the denomination of ten dollars, of the value of ten dollars, [nine other notes are then described,] and said ten articles of value being then and there the property of one C. H. T., and w'hieh said letter and each of said articles of value, the said Lee M. Byrne did then and there feloniously and unlawfully embezzle, and fraudulently and feloniously convert to his own use, and did then and there feloni-ously steal and take each of said articles of value out of said letter, and carry away the same, contrary to the form of the statutes of the United States in such case made and provided, and against .its peace and dignity.” The second count is for another letter to another party with other notes. The indictment was demurred to for the reasons, among others, that the counts were bad for duplicity, and that the allegations were repugnant. •</p>

In Equity. This is a bill in equity filed to restrain the defendant from infringing letters patent No. 331,676, granted December 1, 1885, to Nicholas H. Borgfeldt and Adolph C. Schütz, for an improved cigar-bunching machine.

<p>1. Patents for Invention — Vestibule Car — Connections—Novelty.</p> <p>The object of the invention for which letters patent No. 408,137, were granted to George M. Pullman, May 14, 1889, was to provide a continuous connection between the contiguous ends of passenger railway cars, consisting of an inclosed passageway on the end of each car', the solid parts being connected by a loose joint, or buffer, made of some flexible material so constructed as to accommodate itself to the movement of each car, and yet restrained from moving sidewise so as to obstruct the passage-way, and forming, at all times, a complete vestibule connection. The invention possessed groat advantages over the old open platform cars. There had been no prior attempts to construct a vestibule train having the motions and restraint of motions of the patent. Some prior experiments in the construction of vestibule ears had been abandoned, and, in others, the object of the vestibule had been for purposes of ventilation or to diminish the resistance of the atmosphere to the passage of cars. Held, that the patent was not void for want of novelty.</p> <p>2. Same — Anticipation.</p> <p>A patent was granted November 15,1887, to H. H. Sessions for an improvement in tho construction of railroad cars. The specification stated that the invention consisted in the application to the cars of a frame-shaped plate arranged in a vertical plane parallel witli a vertical transverse plane passing through the car-body, and projecting, by means of backing springs, for a short distance beyond the end of the car, and the purpose was stated lo be (1) to diminish the racking effect upon a car-body when suddenly brought from a state of motion to a state of rest, and via: versa; and (:)) to diminish the tendency to a swaying movement when a train is running rapidly. The specification also stated that the improvement, as shown in the drawings, was exhibited in connection with another improvement in car construction, consisting of a vestibule attachment; and that the vestibule feature was no part of the invention claimed. The Sessions application was filed about two weeks only before tho Pullman application, aud the patentees had been working together. The drawings in the two patents were almost identical, but, on a bill for infringement of the Pullman patent, Sessions, as a witness, limited his claim to exactly tho description contained in his specification. Held, that the Pullman patent was not anticipated by the Sessions patent.</p> <p>3. Same.</p> <p>Tho fact that the Pullman application was at first rejected by the patent-office, mainly on reference to the prior Sessions and another prior patent, and was nor. granted until after the original specifications and claims were rewritten in great part. — Pullman disclaiming anything contained in the Sessions patent, — and after an affidavit by Pullman that he completed his invention before the filing of the Sessions application, does not prove priority of invention in Sessions, where it does not appear on what ground the Pullman patent was finally granted, and there was nothing in the patent, as allowed, which was not in the original application.</p> <p>4. Sami: — Infringement.</p> <p>In the Pullman patent, an arch-plate was to be so secured to the buffer-plate as to be capable of the same motions and restraint of motions as the latter; and, in the preferred construction, it was riveted to the buffer-plate. Held, that a structure in which the only important difference from the Pullman patent was that the arch-plate was hinged to the buffer plate was an infringement of the Pullman patent..</p>

<p>Patents for Inventions — Signaling Apparatus — Inprinoement.</p> <p>Claim 5 of letters patent No. 193,044, granted July 3,1877, to Leroy B. Firman for improvements in automatic signaling apparatus, is for “tbe combination, witb a call writing wheel, of a signal writing wheel, moved by the same power, when the latter is provided with a number of equal spaced teeth, which write the signal desired by making a certain number of equal spaced impulses. ” Two wheels acting in succession, but operated by separate acts of the user, and a single wheel, which made in succession the two impulses, had been previously known. Held, that the claim must be limited to the mechanism substantially as described thorein, and was not infringed by an apparatus in which two wheels coacted to produce a similar result, one producing the impulses, and the other determining which of the impulses should be transmitted.</p>

In Equity. Order to show cause why temporary injunction should not be made permanent. The Atlantic Dredging Company was a New York corporation, which had dredged a navigable channel from the waters of New York into the territory of New Jersey, at Bayonne, at thp head of which channel, and within the limits of the city of Bayonne, was situated its repair yard. The Bergen Neck Railway Company in laying its tracks claimed the right to cross such channel by embankment or trestle.

<p>At Law. On motion to remand from the circuit court of the United States to the state court.</p>

<p>At Law. On motion to dismiss appeal.</p>

<p>Depositions — Oral Interrogatories — Practice.</p> <p>Equity rule 67 provides that testimony maybe taken under commission upon oral interrogatories, if the party desires it,, and that “the examiner shall note all objections to questions, but shall not have the power of decision thereon; but the court shall have the power to deal with the costs of all incompetent, immaterial, or irrelevant depositions, ” etc.; and that, “in case of refusal of witnesses to attend, to be sworn, or to answer any question, * * * the same practice shall be adopted as is now practiced with respect to witnesses to lie produced on examination before an examiner of said court, on written interrogatories. ” Uev. St. TJ. S. §§ 863, 868, give tlie judge of the court of the district in which a witness resides power to compel his attendance and testimony tie hene esse, or on a commission with written interrogatories. Held that, where the testimony of a witness is taken by consent on oral interrogatories before an examiner of the court of the district of his residence, for use in an action pending in another court, the former court has power to decide as to the materiality of questions asked, and may compel the witness to answer.</p>

<p>Xu Equity. Demurrers to hill in equity.</p>

<p>In Equity. Bills for foreclosure of mortgages. Submitted on pleadings add proofs.</p>

<p>Corporations — Insolvency—Preferences to Directors.</p> <p>Where a corporation, while still a going concern, is insolvent, a mortgage on its property, executed to secure the directors, who are liable as indorsers for it to a large amount, is invalid as to general creditors, and that though the mortgage was procured by the directors without any actual fraudulent intent.</p>

<p>Land Grant — Wagon-Roads, Completion or--Stale Claim — Estoppel—Bona Fide Purchaser.</p> <p>In 1866 congress made a grant of lands to the state of Oregon, to aid in the construction of a wagon-road from Albany through the Cascade mountains to the eastern boundary of the state, and provided that the land might be sold as the worlr progressed, on the certificate of the governor of the state, that the portion of the same coterminous with said land was complete. The state transferred the grant, without further condition or qualification, to the Wallamet Valley & Cascade Mountain Wagon-Road Company, which undertook the construction of the road; and, within the five years allowed therefor, procured certificates from the governors of the state that the road was completed as required by law. Soon after, the company sold the lands to the defendants Weill and Cahn, who are now the legal owners thereof, except a small portion which has been disposed of. In 1874 congress authorized the issue of patents for these lands to the state or its assignee, when it was shown by the certificates of the governor that said road was “constructed and completed.” Between 1878 and 1883 a question was made before the department of the interior whether the company had completed the road according to law, and testimony was received thei-eon, pro and con, and, after argument, the secretary of the interior directed patents to issue to the company, which was done on October 30, 1882, for 440,856 acres, in addition to a patent for 107,893 acres, issued on June 19,1876. In consequence of this action by the secretary, the defendants believed that the due construction of the road was admitted by the complainant, and were thereby induced to expend a large sum of money on and about said property. In 1889, congress passed an act requiring the attorney general to bring a suit in this court against all persons claiming an interest in this grant, to determine the question of construction of the road, the legal effect of the governor’s certificates, the right of the United States to resume the grant, and to obtain judgment declaring the land coterminous with any uncompleted portions of the road forfeited, saving the rights of any bona fide purchasers; the suit to be tried and adjudicated like other suits in equity. On August 29, 1889, in pursuance of this authority, this suit was commenced to obtain the relief therein specified. The defendants Weill and Cahn filed two pleas to the bill, in one of which they set up the foregoing facts as an estop-pel, and in the other the defense of a bona fide purchase for a valuable consideration, and without notice of any failure on the part of the company to comply with the terms and conditions of the grant. Meld, (1) that this suit must be tried as a suit between private persons, in which the defendants may set up any defense, including estoppel, and the statute of limitations, that they could if the complainant was merely a private person; (2) that the claim of the complainant to set aside these patents, and declare these lands forfeited, is, under these circumstances, a stale one, and therefore ought not to be allowed; (3) that the complainant, by the passage of the act of 1874, either accepted the certificates^ as conclusive evidence of the due construction of the road, or thereby waived allcfurther performance of the condition on which the grant-was made; (4) that the complainant, by the action of its executive department in issuing the patent of 1882, impliedly recognized and accepted the performance of such condition, and, having thereby induced the defendants to change their relation to said property, by expending a large sum of money thereon and thereabout, is now estopped to allege or claim that said condition was not performed; (5) that the certificate of the governor of Oregon was made, by the act of 1866, the only evidence of the compliance with the terms of the grant by the completion of the road; (6) that, upon the facts stated in the plea, the defendants are purchasers in good faith, and for a valuable consideration, within the saving clause of the act of 1889, and' within the general principles of equity jurisprudence; and (7) that, on the case made by the bill and first plea thereto, it appears that the complainant ought not to prevail in this suit, and there - fore it is dismissed.</p> <p> {Syllabus by the Court.) </p>

<p>At Law...</p> <p>Motion for an order requiring a commissioner to file in court a deposition taken de bene esse.</p>

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

<p>Customs Duties — Liquidation—Bond—Payment-—Subsequent Bjeuiquidation — Surety — Rev. St. ff§ 2961, 2970.</p> <p>The liquidation of duties by the proper customs officers fixes for the time being the amount of duties to which the goods are “subject by law, ” under Rev. St. || 2961, 2970. On a bond conditioned for withdrawal of the goods within one year, “on payment of the duties and charges to which they may be subject by law at the time of such withdrawal, ” held, that a payment within the year of the amount of duties as thus liquidated was a discharge oi' the bond, and that, upon a subsequent re-liquidation at a higher rate of duty, no recovery could be had upon the bond against the surety, though the importer would be liable in a different action for the additional amount.</p>

<p>Customs Duties — Flaxseed—Allowance eor Impurities.</p> <p>Rev. St. U. S. § 2898, prohibiting the allowance of “draught” in assessing customs duties, does not forbid deduction for-impurities from an article subject to a specific duty; and, under Act March 3,1S83, cl. á6ü, (Heyl,) making linseed or flax-seed dutiable “at 20 cents per bushel of 56 pounds, ” a deduction should he made for dirt and similar impurities contained in such seed.</p>

<p>Customs Duties — Classification—Maeble Paving Tile.</p> <p>Small pieces of marble, from three-quarters of an inch to half an inch square, used in making marble mosaic floors, which are worked into figures in the floor, and, after being imbedded in cement, are polished, are dutiable under the tariff act of March 3,1883, (Heyl, cl. 467b,) as “marble paving tile, ” there being no specification in the law as to the size of the latter, and not as a “manufacture of marble, ” under clause 468, though they are often arranged in patterns, and held so by gummed paper, before importation.</p>

<p>Customs Duties — Classification—Bkows Gkease.</p> <p>The fatty matter known as “do gras, ” or brown grease, obtained from wool in the process of cleansing, and principally used by tanners for stuffing leather, which remains of about the solidity of lard at the ordinary temperature, is not dutiable as an “expressed” or “rendered” oil, under the tariff act of March 3, 1883, cl, 92, (Heyl,) but as grease “ not specially enumerated, ” under clause 437.</p>

<p>1. Municipal Corporations — Indebtedness—Bonds—Elections.</p> <p>Gen. St. Colo. | 8312, subd. 6, (section 14 of tbe act concerning towns and cities,) empowers tbe city council to contract debts for certain purposes, and declares that “no loan for any purpose shall be made except it be by ordinance * * * providing for the levying of a tax, ’’etc. Subdivision 60 authorizes the council to pass all ordinances and rules, and make all regulations proper or necessary to carry into effect tbe powers granted to cities or towns. Subdivisions 68, 70, and 76 confer various powers and provide for their being carried into effect by ordinance. Section 15 declares that “municipal corporations shall have power to make and publish * * * ordinances * * * for carrying into effect or discharging the powers and duties conferred by this act. ” Held, that an election for funding municipal indebtedness providing for the issue of bonds should be called by ordinance, though section 3419, which provides for the funding of municipal indebtedness, does not expressly declare that the submission of such question to the voters shall be by ordinance.</p> <p>2. Same — Ordinances—Publication.</p> <p>Under the provision of section 14, that ordinances providing for a loan of the city’s credit “shall be irrepealable until the indebtedness therein provided for shall be fully paid,” such an ordinance is of “a general and permanent nature,” within the meaning of section 25, which provides that ordinances of that nature shall not be in force “until the expiration of five days after” publication. Overruling 41 Fed. Rep. 87.</p> <p>8. Same — Construction of Statute.</p> <p>Section 25 provides that “all by-laws of a general or permanent nature and those imposing any fine, penalty, or forfeiture shall be published * * *, and it shall bo (ieenioil a sufficient. defense to any suit or prosecution for such fine, penalty, or forfeiture, to show that no such publication was made, ” and enacts that “such bylaws and ordinances shall not take effect and be in force until the expiration of five days after they have been published.” Held, that the last provision applied as well to by-laws and ordinances “of a general or permanent, nature” as to those imposing a line, etc.</p> <p>4. Same — Action ox lioxuos — Estoppee.</p> <p>Areeital on the face of municipal bonds that they were issued under an ordinance “adopted” does not estop the city to show as against a purchaser thereof that such ordinance was never published as required by law, and that the bonds were therefore invalid.</p>

<p>Privilege of Witness — Grand Jury — Constitutional Law.</p> <p>- Under Rev. St. U. S. § 860, providing that “no * * * evidence obtained irom a party or witness by means of a judicial proceeding * * * shall be given in any evidence, or in any manner used against him. * * * in any court of the United States, in any criminal proceeding, ” a witness before a grand jury which is investigating alleged violations of the interstate commerce law by a certain railroad company cannot claim the privileges of the fifth amendment to the United States constitution, which provides that no person shall be compelled to be a witness against himself in a criminal case, and refuse to answer questions on the ground that the answer would tend to criminate him.</p>

<p>1. Peitmss ov Witnesses — Grand Jury — Constitutional Law.</p> <p>Where the testimony of a witness before a grand jury, which is investigating alleged violations of the interstate commerce law by the agent of a railroad company, shows that such witness is not himself guilty of the offense, he cannot refuse to produce certain documents demanded by the grand jury on the ground that their production will tend to criminate him.</p> <p>3. Same — Interstate Commekoe Law.</p> <p>An officer of a railway company doing business between states, when a witness before the grand jury, investigating alleged violations of the interstate commerce law, cannot refuse to produce certain documents demanded by the grand jury, on the ground that their production would tend to criminate the company, as such a company is not liable criminally for violations of the interstate commerce law, nor subject to its penalties and forfeitures.</p>

<p>In Bankruptcy.</p>

<p>Constitutional Law — Interstate Commerce — Oleomargarine—Original Packages.</p> <p>One who sells oleomargarine in the original package, as imported into the state from another state, is not subject to arrest under a law of the state in which the sale occurs entirely forbidding the sale of oleomargarine, as such statute is an unconstitutional interference with interstate commerce. Following Leisy v. Ha/fdin, 135 ü. S. 100, 10 Sup. Ct. Rep. 681.</p>

In Equity. The defendants manufactured and sold cement, which they denominated and put upon the market as “Anchor Rosendale Cement,” though made in Lehigh county, Pa., from stone quarried there. The complainants manufacture cement in the town of Rosendale, in the state of New York, where there are extensive quarries of cement rock, which are worked by some 15 or 20 different parties.

<p>1. Patents fob Inventions — Design fob Manufactube.</p> <p>The idea of ornamenting the upper or lower portion of the pipes of a radiator to a uniform height so that it will present ornamental and plain parallelograms in contrast, is patentable as a “new and original design for a manufacture” under Rev. St. U. S. §4929.</p> <p>2. Same — Evidence of Invention.</p> <p>The patentee is not shown not to have been the inventor of the design by the fact that his draughtsman made a drawing of the radiator pipes, showing their form and size, and an architect drew the figures for the particular ornamentation adopted in the radiators manufactured and put on the market by the patentee.</p>

In Equity. Suit by Philip Hake against George F. Brown and another for the infringement oí a patent. A motion for rehearing was made in this case, and denied. Another motion was thereafter made to reopen the case, amend answer, and take further proofs.

<p>Patents for Inventions — Electric Lamps — Infringement.</p> <p>The lamp manufactured under letters patent No. 219,208, granted to Charles F. Brush, September 2,1879, for “ an electric lamp, ” is a duplex lamp, organized to burn two or more pairs of carbons successively, and its distinguishing features are the arrangement of the feeding mechanism, so that the carbons of the two pairs are dissimuitaneously separated to form the arc, and after the arc is formed between two cai'bons one is fed towards the other as fast as it is consumed, and, when this pair is fully consumed, the electric current is automatically transferred to the other pair. This” feeding mechanism is operated entirely by electricity. Brush showed in his specifications that the feeding could be done by a clutch mechanism, suggested that it might be done by_ clock-work, but expressly said that he did not limit himself to any specific mechanism for obtaining the desired result. Meld, that the patent is infringed by a lamp having the same characteristics, and differing only in that the feeding mechanism is operated by clock-work, which, however, is brought into action and controlled by electricity; and it is immaterial that in the latter the carbons may be separated by hand, where it appears that if this is not done the machine will do it as in the Brush lamp.</p>

<p>t„ Patents fob Inventions — I nebing-ement — Injunction.</p> <p>Injunction to restrain iniringement of a patentwill not bo granted against a corporation whicli has disposed of the business in which the patented device was used before the bill was filed, and has not since used it.</p> <p>Ü. Same.</p> <p>Nor will injunction be granted against the president of such corporation, who has been retained as an employe by the purchaser of the business of the corporation.</p> <p>3. Same — Temfo-uaky Injunction.</p> <p>In the absence of a prior adjudication of the validity of a patent and of proof oí general acguiescence therein, the court will not grant an injunction pendente Ute on a bill to restrain infringement, where the proof leaves it uncertain as to the pat-entability of the patented article, and where it appears that respondents have large and valuable property, and are perfectly solvent, and the measure of complainant’s damages in case his patent is finally esí ablislied can be easily ascertained.</p>

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

<p>A pplication lor an order to compel production of papers on a subpoena duoes tecum.</p>

<p>1. Admiralty — Rehearing—Newly-Discovered Evidence.</p> <p>After a libel for collision had been determined against libelants and a stipulation entéred into by both parties to dismiss the action, libelants asked a rehearing, on the ground of the newly-discovered evidence of passengers of the libeled steamship. Libelants had a list of those passengers at the trial, but did not know their residences. Their affidavit alleged that they had afterwards learned the residences of these passengers through the Spanish consul. Held, that a rehearing would not be granted, as no excuse was given for failure to find the passengers’ residences by the same means before the trial.</p> <p>2. Same.</p> <p>Nor is it ground for such rehearing that new evidence has become available through some of the steamer’s crew, where libelants, before the trial, had a full list of such crew, and knew which of them claimants would not examine as witnesses, but did not call any of them.</p> <p>3. Same.</p> <p>Nor is it ground for such rebearing that libelants bave discovered a witness who was in sight of the steamer the morning after the collision, where information of the whereabouts of such witness was obtained from the diary of a passenger, so that, if the passenger had been found before the trial, the witness might have been found too.</p> <p>4. Same — Expert Evidence.</p> <p>Newly-discovered expert evidence as to the distance at which shore lights can be seen, and as to the eifeet of a change of helm in giving a list to a vessel, is no ground for such rehearing, as such evidence might have been obtained at the trial.</p>

<p>Admiralty — Review on Appeal.</p> <p>In cases involving questions of fact only depending on conflicting evidence, and the credibility of witnesses, the circuit court in admiralty will not disturb the decrees of the district court, where there is no preponderance of evidence, and no additional evidence offered on appeal.</p>

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

<p>Removae or Causes — Motion to Remand.</p> <p>Where a. cause has been removed from a state to a federal court upon defendant’s petition, alleging diverse citizenship, plaintiff’s petition to remand, denying the allegation of diverse citizenship, will be treated as a traverse of the petition to remove, and the motion to remand will be decided upon the trial of the issue thus made.</p>

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

<p>National Bank — Insolvency—Payment of Pbefekkeu Debt — Interest.</p> <p>Insolvent debtors of an insolvent national bank assign, giving preferences in favor of the bank. Qumre, whether the debt preferred shall carry interest. Held that, where there is nothing in the language of the assignment, or in the circumstances under which the debt was created, to negative the presumption that the deht should bear interest, and nothing in the conduct of the receiver of the national bank to estop him from claiming interest, in such a case interest must be paid.</p> <p> CSyllabus by the Court.) </p>

<p>1. Equity Jurisdiction — Injunction—Taxation.</p> <p>Where a suit is not essential to the’ collection of a tax, and a penalty is imposed, for delay in paying the tax, and no action lies to recover back the tax if paid, equity has jurisdiction to determine the legality oí the tax, and enjoin its collection if illegal.</p> <p>2. Same — Multiplicity op Actions.</p> <p>The fact that a penalty is imposed for each day’s delay in the payment of a tax, and that the state might bring a separate action for each day’s penalty, is no ground for the interference of a court of equity in order to prevent a multiplicity of actions, since it will not be presumed that the state would institute vexatious litigation.</p> <p>8. Taxation — Interstate Commerce.</p> <p>Act Mo. May 16, 1889, which imposes on companies cari-ying goods “by express, on contract with any railroad or steam-boat company, ” a tax on their “receipts for business done within this state, ” is not an interference with interstate commerce.</p> <p>4. Same — Constitutional Law.</p> <p>Said act does not deprive the express companies of the equal protection of the laws, or constitute inequality of taxation, since the state has a right to tax different kinds of property in different ways.</p> <p>5. Express Companies — Common Carriers.</p> <p>An express company is a common carrier which, au regular periods, over fixed routes, carries money and articles of value in the charge of its own messenger, on passenger steamers and railway trains which it does not own, but with the owners, of which it contracts for the carriage of its messengers and freights.</p>

<p>1. Public Lands--Oregon Act op Oregon — Missionaby Stations.</p> <p>The proviso in the organic act of Oregon territory, confirming titles to the land not exceeding 040 acres then occupied as missionary stations among the Indian tribes, in the religious societies to which said missionary stations respectively belonged, must be construed as a grant of only the specific lands which were at the dale of the act so occupied, exclusively, and not in subserviency to another’s right.</p> <p>2. Same — Grant Construed — Possession.</p> <p>The land in possession of the Hudson’s Bay Company at the date of said act, and to which said company had a legal possessory right for a definite period, was not granted by said act. although priests of the Roman Catholic Church, by permission of said company, then had and maintained a missionary station thereon.</p> <p> (Syllabus by the Court.) </p>

<p>At Law. Ruling on demurrer.</p>

At Law. Action on interest coupons. I»v consent of parties, this case was tried to the court, and, from the evidence submitted, the court makes the following finding of facts: (1) This action is brought upon 410 interest coupons, for @30 each, originally attached to certain negotiable bonds, duly executed by the defendant, the county of Lyon, on the 1st day of May, 1885, and thereafter negotiated and delivered to the purchasers thereof, under the circumstances hereinafter…

<p>Patents for Inventions — Infringement—Preliminary Injunction.</p> <p>A preliminary injunction should not, issue in a suit ior infringement, where upon the issue of privity of invention the evidence is merely oath against oath.</p>

<p>Patents for Inventions — Actions for Infringement — Pleadings.</p> <p>Rev. St. U. S. § 4919, provides that damages for infringement of a patent may be recovered by an action on the case. Section 4920 prescribes the nature of pleadings to be used in the action, and was passed in 1874. Section 914, which provides that the practice, pleadings, etc., in the federal courts shall conform as near as may be to those “in like causes” in the state courts of the state where such federal courts are held, was passed in 1872. Held that, as actions for infringements of patents aro. within the exclusive jurisdiction of the federal courts, the pleadings therein aro governed by section 4920, and a declaration in such an action, conforming to a common-law declaration in an action on the case, is sufficient, though a different form is prescribed by the statutes of the state where the court is held, and that the answer in such an action should comply with the common-law pleadings in actions on the case in form covering one or more of the defenses permitted in section 4920.</p>

<p>Patents for Inventions — Infringement—Cross-Bill—Pleading.</p> <p>Letters patent No. 238,490, issued March 15, 1881, to James E. Low, for an improvement in the dental art “ whereby artificial dental surf aces may be permanently fixed in the mouth in place of lost teeth, without the use of plates, or other means of deriving support from the gum beneath the artificial dentition, ” were sustained in International Tooth-Crown Co. v. Richmond, 80 Eed. Rep. 77R; but in a suit to restrain infringement defendant answered that full proofs were not presented in that case, and now asks leave to file a cross-bill charging anticipation, that the patent, if valid, does not cover all practical forms of artificial dentures known as “crown” and “bridge” work, and that complainant, with a view to harass him in his dental business, has caused to be published, in newspapers and circular letters, warnings that its patent is construed to cover all practical forms of crown or bridge work, and threats that all persons procuring such artificial dentures from defendant will be prosecuted, and offering rewards for information of the performance of bridge and crown work by any dentist not licensed by it. Held, that all matters attacking the validity of the patent could be presented under the answer to the original bill, and that the alleged unlawful attack upon defendant’s business was not the proper sub-jeet of a cross-bill.</p>

Bill in Equity by Charles A. Wright, to Restrain A. H. Postel from Infringing Complainant’s Patents. In the earlier patent (No. 290,308) the invention was stated to consist in a wheel, loosely supported on a stationary bearing, and having its periphery provided with a series of clamps,.by which the cards are clamped, and in many details of construction.

<p>1. Patents poe Inventions — Assignment—License.</p> <p>An instrument which is in terms a transfer by complainant to defendant, of the exclusive right “to manfacture and sell and vend ” certain patented articles, the purchasers to have the right to use the articles, which expresses that it is intended for the purpose of vesting in defendants all the rights of complainant in the manufacture and sale of such articles, but which expressly provides that complainant shall retain the ownership of the patent, and in which defendants stipulate for payment of royalties and to do all reasonable things for the successful manufacture and sale of the patented articles, is a mere license.</p> <p>2. Same — Estoppel.</p> <p>Where defendants admit that they have manufactured and sold under such license, and that they have assigned whatever rights they had thereunder, they will not be permitted to plead that they were led to make the contract by complainant’s false and fraudulent representations, nor that the patent was invalid, as complainant knew.</p>

<p>Patents for Invention — Desion eoe Beaid — Inekingement.</p> <p>Letters patentNc. 18,589, granted to VAlentineSchuck, September 4,1888,fora design for braid covers, a design having when seen in cross-section, two extended flattened elliptical curves diverging at an obtuse angle from each other, with a third rib projecting from the center in the form of a convex curve, and smaller than the others, presenting the appearance of a trefoil. Held, not infringed by a braid made in two colors, and having four ribs, the two lower ones being smaller than the others.</p>

<p>Warrant or Arrest — Issuance on Sunday.</p> <p>A warrant of arrest may issue in admiralty on Sunday, where a vessel has changed her day for sailing, and proposes to sail on that day, and a libelant for seaman’s wages did not learn that his wages would not be paid in time to begin his case before that day.</p>

In Admiralty. Suit to recover for services in dry-docking vessel. Cross-suit for damages received by vessel while in dry-dock.

<p>Colliston — Pit cotice — Decbee.</p> <p>Whore several libelants, having- distinct damage interests, recover in a cause oí collision, the decree may be in form for recovery by all of the aggregate sum, and directing a distribution to each of the sums respectively adjudicated to them.</p>

<p>Salvage — Fire on Pier — Towing Endangered Vessel — Award.</p> <p>As the steam-ship Holland was lying at her pier, a sudden fire broke out on the side of the pier opposite to where the steamer lay. The officer in charge of the steam-ship requested a tug, lying near, to tow the steam-ship away, and shortly afterwards another tug was signaled by the steam-ship and took another line, but, getting into such a position as to be able to bring but little power to bear, a third tug came to her assistance. Under power of these three tugs, and with two additional tugs keeping her off from the pier, the steam-ship was moved out of danger. The city fire department, with twelve engines and two fire boats, came to the fire soon after it started. The steamer could have been warped across the slip by her donkey engines, which had steam up. The service of the tugs lasted some two hours. With her cargo the steamer w'as worth §600,000. Meld, that the service was a salvage service, in which the value of the property saved was great, but the peril moderate, and $4,500 was awarded to the tugs in proportion to their relative merits.</p>

<p>1. Shipping — Limitation op Liability — Act June 24,1884 — Person al Contracts.</p> <p>The act oí June 26,1884, limiting the liability of the owners of vessels “ on account oí the same ” to their interest in the vessel and the freight pending, is to be construed as in pa/i'i materia with the act of 1851, (Rev. St. §§ 4283-4285,) and in accordance with the general maritime law, and does not embrace the personal contracts of such owners, or such as they have adopted as their personal liabilities.</p> <p>2. Same — Liability bob Repairs — Collision—Res Ad judicata.</p> <p>Repairs were made on the schooner P. in her home port, by order ox the managing agent, with knowledge of some of the owners. On the third voyage after-wards, through her fault, a collision claim arose against her, exceeding her value. The owners, upon the surrender of the vessel, and pending freight, thereupon obtained a decree limiting their liability, which decree was pleaded in bar of the claim in this suit against the owners in personam for the bill of repairs. Held, that the decree was not a bar; that the claim was a personal contract of the owners, not subject to limitation, or, if so, only upon surrender of the vessel and freight as they existed at the close of that voyage, free from liens or demands growing out of prior or subsequent voyages.</p>

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

<p>Shipping — Charter-Party—Lay Days.</p> <p>A contract provided that merchants should have, to load a vessel, 20 days, “ counting from the day of readiness until the day of dispatch. ” Held that, as the contract wasnotoneby which a present interest was vested, the“day of dispatch” and “ day of readiness ” were to be excluded.</p>

<p>1. CHARTER-PARTY— INTERPRETATION OB CONTRACT— STEVEDORE.</p> <p>A charter-party containing a clause reading, “The vessel to employ stevedore satisfactory to charterers; hut, if appointed by them, the charge not to exceed that current at the time, and to be stowed under the captain’s supervision and direction, ” —does not give the charterer an absolute r-ight to select the stevedore. A clause so worded is to be understood as an agreement that the stevedore must be satisfactory to both parties; and in such a- case the charterer is not entitled to damages because of delay in commencing to load, resulting from a disagreement between him and the master in regard to the selection of a stevedore,</p> <p>g. Same — Breach oe Contract — Damages.</p> <p>Damages cannot be recovered by the charterer by reason of the vessel having been removed from the loading port previous to the signing of the bills of lading, and without sailing orders from him, where the master acted prudently, and for the interest of all concerned, and the charterer suffered no loss or injury thereby.</p> <p>8. Demurrage.</p> <p>Delay in loading, resulting from the failure of the charterer and master of the vessel to agree in selecting a stevedore, where the contract requires the employment of ‘a stevedore satisfactory to both, does not give the vessel a right to demur-rage.</p> <p>4. Admiralty — Detention oe Vessel — Damages.</p> <p>The arrest and detention of a vessel by legal process in a suit in rem, whiehj although unfounded, is not mala fiües, does not entitle the owner to damages.</p> <p> (Syllabus by the Court.) </p>

<p>In Admiralty. To recover under marine insurance.</p>

<p>Maritime Liens — Repairs—Resid ext Owxer — License—Credit to Vessel.</p> <p>Where repairs were made in New Jersey on a vessel, one of whose owners resided in New Jersey but the other two in New York, and in the application, for license at the custom-house all of her owners were stated to be of New York, and the ma-torial-man had no knowledge to the contrary, and dealt on the credit of the vessel, held, that a’anitiit rem would lie to recover the price of the repairs;</p>

<p>1. Charter-Party — Refusal to Load — Damages—Filling Prior Contract — Market Valve.</p> <p>Where a chartered vessel refused to take the cargo, (lumber,) and, owing to the consequent delay in arrival, the charterer was compelled to fill a contract of sale made long before by buying other lumber at a higher price, and there was no evidence of any fall in market price between such purchase and the arrival of the charter cargo, held, that the difference between his contract price and the price paid was not the rule of the charterer’s damage, but the fall in market price, if' any, during the delay in arrival; and, if there was no fall, then the only damage was the interest on the amount paid for the lumber so purchased during the time that -elapsed before the charter cargo arrived.</p> <p>2. Same — 'Wharfage Expenses — Handling Other Cargo.</p> <p>The cargo destined for the chartered vessel lay on a wharf obstructing other loading, and.causing extra expense in handling other cargoes over it. The evidence showed that the expense thus incurred was less than the cost would have been to remove the cargo there waiting until it could be shipped. Held that, treating this as a substituted expense, it should be allowed as an item of the charterer’s damage.</p>

<p>1. Towage — Damages—Old Vessel — Inability to Raise Vessel Sunk.</p> <p>When a barge was sunk by being negligently towed upon a sunken rock, and, in consequence of her old and weak condition, which rendered raising impossible, she became a total loss, held, that full weight should be given to this circumstance and the previous history of the boat by reducing the assessment of her value.</p> <p>3. Same — Weakness not Contributory to Accident — Apportionment. .</p> <p>A previous condition of weakness on the part of a vessel negligently sunk not having contributed to the accident or induced the fault, and it not being possible that any express notice of such condition could have affected the navigation, and her old and leaky condition being known, held, that these conditions constituted no such fault in the vessel sunk as permitted a division of damages.</p> <p>3. Same — Overvaluation—Costs.</p> <p>On the assessment of damages, the recovery of a much less sum than claimed for the value of an old vessel is not sufficient evidence of fraudulent exaggeration to deprive the plaintiff of his statutory right to costs, where the libelant’s estimates are largely sustained by reputable witnesses, though the court adopt a much smaller valuation.</p>

<p>Collision — Between Steam and Sail — Dangerous Proximity.</p> <p>A steamer and a schooner approached each other end on, or nearly so, at the rate of 366 yards per minute, on a bright moonlight night, in a channel 420 yards wide. The steamer kept on her course until within SO to 70 yards of the schooner, when the master of the schooner, alarmed at the danger, changed his course, whereupon the steamer turned and backed, but too late to avoid a collision. Held, that the steamer was liable, since her neglect to keep away from the schooner until within “dangerous proximity” justified the latter in changing her course.</p>

<p>1, Collision — Damasks—Bating for Insurance — Allotment Notes.</p> <p>Although the expenso of the new rating- of a vossel repaired after collision, as an expense necessary to put the vessel into her previous insurable condition, may be recovered, under the rule of restitutio in integrum, it is rightly oxcludod when the vessel is repaired in a different manner from her original construction; nor are allotment notes recoverable as advances to the crew when freight and demurrage are allowed for.</p> <p>2. Same — Subsequent Capsizing — Proximate Cause.</p> <p>After collision at sea the schooner B. H., filling but not sinking, was during one day towed in from sea to Portress Monroe, and there left in charge of her captain, who afterwards employed a tug to Tow her to Norfolk, a trip of an hour or two only, during which she capsized, no cause of capsizing being made known, and the master testifying that he could not explain it. Held that, considering the much longer previous towage at sea under more difficult circumstances, the subsequent capsizing of the schooner, without any change in her condition, and without explanation, was to be inferred -prima faeie To be due to mismanagement, and not to the collision, as the proximate cause, and that the additional damage and expense caused by such capsizing could not be allowed in the assessment of the collision damages.</p>

<p>In Admiralty. Cross-suit for damages by collision between the steamboats Express and Niagara.</p>

<p>Collision — Personal Injuries — Mutual Fault — Part Damages.</p> <p>While the canal-boat on which the libelant lived lay moored in th? slip, the bowsprit of the lighter M. approached the cabin, threatening collision. The libelant ran out to remove her child out of harm’s way, and, having done so, put her hand against the end of the bowsprit, to fend it off. Her wrist was caught between the bowsprit and the cabin window frame, and was broken. Held, that the libelant, though, chargeable with contributory negligence, could recover part of her damages, in accordance with the decision of the supreme court in the case of The Max Morris, 11 Sup. Ct. Rep. 29.</p>

<p>Collision — Steam-Vessels—Channel-Wax—Lookout.</p> <p>A dredge, employed in deepening the channel of New York bay, on arrival at her dredging ground found her pumps out of order. While repairing them, she made a circuit, and, returning, swung into the channel under the hows of the steam-ship Ñ., which was going to sea. The dredge had no lookout, and the man at the wheel did not see the N. until she was upon him. The place where the collision occurred was buoyed as a place being dredged, and signals were flying on the dredge to show her character. At the time of the collision, an incoming steamer was passing the N., and the attention of the latter’s officers was given to her. Held, that both vessels were in fault in keeping insufficient lookout.</p>

<p>FEDERAL Courts — Washington District Court-Grand Jury.</p> <p>Act Cong. April 5,1890, entitled “An act to pi’ovide for the time and place to hold terms of the United States courts in the stale of Washington, ” provides that “the state of Washington shall constitute one judicial district” uniformly refers to the court as the “district court for the district of Washington,” and, though “for the purpose of holding terms by the district court, ” the district is divided into four specified “divisions,” known as “Northern,” “Southern, ” “Eastern,”and “Western, ” the provisions respecting the times and places of holding court refer in terms “to civil suits not of a local character, ’’and no mention is made of criminal offenses. ” Held, that under Const. U. S. Amend. 6, providing that in all criminal prosecutions the accused shall be tried by a jury of the “state and district wherein the crime shall have been committed, ” an indictment, purporting to have been found “by the grand jurors of the United States of America for the northern division of the district oil Washington, sworn * to inquire of all offenses * * * committed within the northern division of the district of Washington,’’was void, as the state constitutes but one district, and the jury must bo drawn from and have power to inquire into offenses in the whole thereof.</p>

<p>1. Wife’s Powhb to Chakge Heb Smpabate Estate — Mobtgarbs.</p> <p>A mortgage ol her separate estate, given by a married woman to secure the payment ol her husband’s debts to the mortgagee, is invalid in South Carolina.</p> <p>2. Same — Subkouatios.</p> <p>Whore, however, a part ol the money obtained by such mortgage is used to pay oil a prior valid mortgage on the estate, the second mortgagee willbe subrogated to the rights ol the mortgagee under the prior mortgage, and to that extent may enforce his mortgage.</p>

<p>1. Clerk of Court — Fees.</p> <p>under Act Gong. March 8, 1887, (2á St. 505,) the clerk is entitled, on orders of the court, to pay the accounts of th@ marshal and officers, other than commissioners, as follows: Entering order, 45 cents; copy, 30 cents; certificate, 15 cents; seal, 20 cents; filing duplicate, 10 cents.</p> <p>2. Basie.</p> <p>, , , The statute requires that only one copy of the commissioner’s account shall be presented, which is forwarded to the treasury department. Held, that a certified copy o£ the order of court approving it should accompany it, and that the fees should be as follows: Entering the order of approval, 45 cents; filing same, 10 cents; copy, 30 cents; certificate and seal, 35 cents.</p> <p>3. Same.</p> <p>Where blanks furnished by tho department for abstracts of payment of witnesses, etc., contain jurats, tho clerk is entitled to a fee of 25 cents for each jurat.</p> <p>4. Same.</p> <p>He is also entitled to a fee of 10 cents for filing each separate voucher roturned by the marshal with his accounts.</p> <p>5. Same.</p> <p>Under Act Gong. Aug. 4, 1880, (24 St. 253.) providing that none of the money thereby appropriated shall bo used to pay clerk’s per diem for attendance in court except"!or days when business was actually transacted, the burden is on the clerk to shoAV that business was actually transacted by the court on the days for which ho claims his per diem for attendance.</p> <p>6. Same.</p> <p>A commissioner is entitled to a per diem for time actually spent by him in his judicial character as commissioner on criminal cases after the accused were arrested, though their cases wore continued.</p> <p>7. Same.</p> <p>The petitioner is entitled toa commissioner’s per diem for services performed as such, though he performed services as clerk, and received compensation therefor, on the same day.</p> <p>8. Same.</p> <p>Under Act Gong. June 30, 1879, (21 St. 43,) appointing the clerk a jury commissioner ex officio, he is entitled to a jury commissioner’s compensation for services performed’ as such.</p> <p>9. Same.</p> <p>For the annual statement to the attorney general of the judgments, etc., for the preceding year, the clerk is entitled to compensation for the final abstract at 15 cents per folio, and not to the regular lees for searches.</p> <p>10. Fees.</p> <p>He is entitled to fees for copies of orders to pay jurors, and for seals thereon.</p> <p>11. Same.</p> <p>The clerk’s foes for final records in criminal cases should he in accordance with the folios which are contained in tho record, and not he limited to four folios. But ho is not entitled to a separate foe for entering the ora) appearances of attorneys in criminal eases, as this is included in the docket fee.</p> <p>12. Same.</p> <p>Docket and discontinuance fees should be allowed where the commissioner’s records are returned to court and docketed, though the case is discontinued before the information is filed.</p> <p>13. Same.</p> <p>Under Itev. St. U. S. § 1091, providing that no interest shall be allowed on any claim up to the time of the rendition of a judgment thereon by the court of claims, unless on a contract expressly stipulating therefor, tho circuit court cannot allow interest in a suit therefor brought in such court under 24 St. 505, no contract having stipulated for such interest.</p> <p>14. Same.</p> <p>The commissioner is entitled to a fee for recognizance of record taken, by him, where justices of the peace of tho state in which the federal court is held have power to take such recognizances.</p> <p>15. Same.</p> <p>Where principal and surety enter into such recognizances by separata acknowledgments before the commissioner, he is entitled to a fee for each acknowledgment.</p> <p>16. Same.</p> <p>Under the provision of the statute that “copies of the process shall he returned to the clerk’s office, ” fees should be allowed for transcripts of the record.</p> <p>17. Same.</p> <p>The provision of Act Cong. Aug. 4,1886, (24 St. 274,) which is an appropriation bill, that commissioners maybe paid the same compensation as is allowed clerks for like services, but “shall not be entitled to any docket fees, ” applies not merely to that appropriation, but is continuing.</p> <p>18. Same.</p> <p>The provision of Rev. St. U. S. § 1030, that no writ is necessary for remanding a prisoner from the court into custody, applies where the accused is in custody under a warrant from the court, and not where he is arrested on the first warrant of the commissioner to arrest and bring before him, and the commissioner is entitled to a fee for a mMUrrms upon the first continuance, if the prisoner is to be held.</p> <p>19. SIme.</p> <p>The clerk is not entitled to fees as for reports for letters transmitting receipts of the depository for moneys, and stating the nature of the case, as the commissions on such moneys were intended to pay for these services.</p> <p>20. Same.</p> <p>The clerk is not entitled to a fee for keeping a list of the names and residences of jurors, as this is part of the jury commissioner’s duties.</p> <p>21. Same.</p> <p>The commissioner is entitled to fees for affidavit, warrant, etc., in the case of an accused person who was not arrested, having left the state.</p>

<p>Customs Duties — Return of Board of Generar Appraisees.</p> <p>The return of the board of United States genera] appraisers, under section 15 of ihe act of June 10, 1890, entitled “An act to simplify the laws in relation to the collection of the revenues, ” should contain, in addition to the record and the evidence taken by them and their decision on the questions of law, a certified statement of the facts involved in the case; and it is the duty of the said board to pass upon the questions of fact raised by the protest of the importer.</p>

<p>Patexts von Ixvfxtioxs — IxPKixGEinsxT — Et.ectkic Lights — Feeding Devious von Cnu’.oxs.</p> <p>Letters patent Yo. 147,827, granted January 24,1874, to Matthias Day, for an “improvement in electric lamps, ” were for a device by which the upper and lower carbon holders ol an electric lamp, each arranged to carry two or more carbons, are caused to be fed towards each other in such relations that the art; will bo established and burn between one pair of carbons for a short interval and then shift to the other pair, so that the arc shifts from one pair to the other until both arc con. sumed; but the carbons carried by each carbon holder move together. Hold, that this patent is not infringed by letters patent STo. 219,208, granted September 2, 1879, to Charles E. Brush, for a device whereby the upper carbons are separated dis-simultaneously from the lower, whose holder is fixed, so that the arc is established between the pair last separated, the upper carbon of which is fed towards the lower until they are entirely consumed, and then the arc is established between the other pair, which burns in the same way.</p>

<p>Patents for Inventions — Screw-Making Machines — Construction of Claims — Anticipation.</p> <p>The specifications Xor letters patent No. 125,209, granted April 2, 1872, to James M. Carpenter ior improvements in machines tor cutting gimict-nointed screws, recite that “the purpose of the present improvement is to cut the'gimlet point upon the screw by an operation subsequent to that by which the thread is cut upon thd body, so that the strain of the two operations shall not come upon the screw blank at the same time, ” as had previously been the case; and the specifications further recite that “my first improvement consisted in the combination with the dies which cut the body of the screw of a threaded back rest, which * * * holds the screw after the dies which cut the body have left it, and the pointing tool or tools by which the thread is cut upon the point while the screw is supported by the threaded rest. My second improvement consists in the use of what I call the ‘serial cutter or tool,’ which is made with a series of cutting edges, :i if * and its relation to the pattern or former * * * is such that the several cutting edges will remove successive shavings from the point of the blank. ” The claims are: “ (1) The threaded rest as a device to support the screw already formed, * * * and in connection with the screw to act as a leader to give motion to the tool-carrier. (2)The serial tool, e, in combination with a former or guide so related thereto that * * * the several teeth will out successive shavings” from the blank. Held, that the second claim could not be construed to include a threaded rest and screw with the two elements therein mentioned, hut must be limited to a combination of the latter; and, as it was anticipated as so limited by letters piatent No. 123,307, granted January 30, 1872, to Cyrus B. 3?. Tingley, it was void.</p>

<p>Patents for Invektions — Ilh-soky Stage Efeects — Novelty.</p> <p>Claims 1 and 3 of letters patent No. 386,709, granted to ,T. W. Knell, October 16, 1883, for improvements in illusory dramatic effects, for a combination whereby all the incidents of a horse-race may be simulated, are not void for want of novelty, thongh m’ost of the elements are old, as in no prior device are the elements so combined as to produce the same effect.</p>

<p>1. Patents for Inventions — Suits for Infringement — Pleading.</p> <p>In a suit for infringement of letters patent, complainant will not be allowed to file a supplemental bill, making other persons defendants, in which the principal allegation is a charge of conspiracy between the original defendant and such other porsons, to maintain the defense, and which does not allege that such other persons have infringed the patent, where defendant excepts to its filing, and nothing has occurred since the filing of the original bill requiring a supplemental bill.</p> <p>8. Practice — Exhibits.</p> <p>The court will not compel defendant to file an- ink-drawing of an exhibit which is on file in pencil, on complainant’s motion.</p>

<p>t. Seamen — "Wrongful Discharge — Damage—Fishing Vessel.</p> <p>A master and crew wrongfully discharged by the owner of a fishing vessel from employment under a contract for the entire season, wages to be in the ratio of the quantity of fish caught, may recover damages for such discharge, based on the amount they would have received as wages on the catch of the whole season, less, the amount actually paid them, and any wages earned by them during the season, after their discharge.</p> <p>2. Same — Release and Discharge.</p> <p>A receipt by the master in such cáse for his wages in full to the time of his'discharge is no bar to a ^ibel for wages for the residue of the season, the evidence-showing that it was not intended as a settlement for the wrongful discharge.</p> <p>Affirming 86 Fed. Rep. 509.</p>

In Admiralty. On libel for salvage and cross-libel for embezzlement. Th»3 libel was filed to recover the sum of $805 for the use by the propeller Albany of libelant’s tug Major Dana for 73 hours, from 8 o’clock a. m. of November 28, 1887, at $10 per hour, and for 3 days’ use of 2 lighters, at $25 per day, during the same period. In support of their claim, libelants offered in evidence a bill, certified by the master of the Albany, for this amount.

<p>Collision — Steamers—Loss of Stebhagk Wat.</p> <p>Where a steam-ship, while in relations to a steam-tug and her tow described by rules of navigation 19 and 22, in stopping for the purpose of coming to anchor, loses her steerag'e way, and disables herself from complying with those rules by keeping out of the tug’s way, and a collision ensues, held, that the steam-ship was in fault, and must pay the damages.</p> <p> (.Syllabus by the Court.) </p>

<p>In Admiralty. Suit to recover damages caused by collision.</p>

<p>1. KrvrovAT. or Causes- -Kes AD.TtroroATA.</p> <p>Where a suit is removed to a federal court after the state supreme court has passed upon a demurrer filed In the suit, the decision on such demurrer is binding on the federal court.</p> <p>2. Coxtbact — Evidence.</p> <p>In a suit upon an alleged parol agreement by railroad contractors to assume the debts of the railroad company, the defendants denied making the agreement, and two of the company’s directors, who were present at the meeting at which said agreement was alleged to have been made, corroborated their testimony. Two other directors and the secretary of tho company testified that the agreement was made. Shortly after said meeting, one of the defendants wrote a letter to the secretary of the company, in which he questioned the correctness oí a statement of the company’s debts, and promised to refer it to defendants’ agent, but did not deny their liability for the debts. Meld, that the evidence was sufficient to establish the contract.</p>

<p>1. Removal oe Causes — Motion to Remand — Presumption.</p> <p>Under Act Cong. Aug. 13, 1888, c. 866, § 3, which provides that, when a proper bond and petition, for removal ax-e filed, “it shall be the duty of the state court to accept said petition and bond, and proceed no further in the case, ” where the record as certified shows that such bond and petition were filed, it will be presumed, on motion to remand, that they were duly accepted by the state court, though no order of removal was entered.</p> <p>2. Same — Separable Controversy.</p> <p>Under section 2, Id., which provides that where there is in any removable suit a controversy wholly between citizens of different states, and which can be determined as between them, either one or more of the defendants actually interested therein may remove the suit, a suit in which the only controversy is between the complainant and one of the defendants may be removed by such defendant, though other persons, who have no interest in the suit, have been improperly joined as parties defendant.</p> <p>8. Carriers — Trattic Contract — Rescission.</p> <p>A contract between railroad companies by which one company allows the other • to use its freight depot and tracks in consideration of rent at a fixed rate per ton and per car, without any provision as to the length of time the contract is to remain in force, may be rescinded by either party at any time, on reasonable notice.</p>

<p>Quieting Titiji — Jukisbictiost—Amount IN CoNTItOVEKSV.</p> <p>In a suit by the owners oí separate lots, who derive title from a common grantor, to quiet their title as against a defendant who claims to own all tho lots,' the amount in controversy is the value of all the lots owned by the complainants, and not the value of separate lots of each.</p>

<p>1. Judgment — Bin to Set Aside — Fraud.</p> <p>Where a bill in equity alleges that complainant’s consent to a compromise decree in former litigation between same parties was obtained by a fraudulent withholding by defendants of important and material facts, well known to them, and unknown to complainants, which facts would probably have controlled the case in complainant’s favor, the facts being here fully stated, and prays a decree setting aside the former decree, and demurrer is filed, held, demurrer will be overruled.</p> <p>2. Same — Evidence of Pkaud.</p> <p>G. conveyed land to his wife and children. Subsequently suit was brought against G. on a promissory note by his sister, Mrs. P. Judgment was obtained, and execution issued on the judgment levied on land conveyed to wife and children. They filed bill alleging collusion in obtaining' judgment between G. and Mrs. P., and that there was no real indebtedness on note, which was the foundation of suit. G. and Mrs. P. filed sworn answers to bill, claiming bona fide indebtedness. There was compromise decree, making part of' land subject to Mrs. P.’s execution. Subsequently, during his last sickness, and shortly before his death, G. informed Mrs. G. that “ho and his sister had wronged lior; that the papers they fixed up were .a fraud. ” After his death she found in his papers a release from Mrs. P. to G. froip. all liability on the note. Other statements and circumstances are corroborative, and all taken together show collusion and fraud between Mrs. P. and G.</p>

<p>1. Assignment fob Benefit of Creditors — Validity.</p> <p>A deed oí assignment which is voidable because the accompanying schedules are defective is good as to the assignor until attacked by creditors, and a second deed from him before the first one has been attacked passes no title, even though the as-signee has not taken possession of the property.</p> <p>3. Same — Preferences.</p> <p>Under the Tennessee statute, which declares that “preferences of creditors in general assignments of all a debtor’s property shall be illegal and void, ” an assignment containing preferences is only voidable.</p> <p>3. Same — Rights of Creditors</p> <p>The preferred creditors are entitled to their ratable share of the assigned property, in spite of the illegal preference.</p> <p>4. Same — Power of Assignee.</p> <p>Where an assignee does not accept the trust, a conveyance by him of the assigned property, contrary to the terms of the assignment, passes no title;</p>

<p>Railroad Companies — Crossings—Injunction—Highways.</p> <p>Where a comity court declares a road to be open as soon as certain fences are set and other conditions complied with, and the proposed road is left with railroad tracks, fences, and embankments crossing it for 11 .years thereafter, and there is no proof that any of the said conditions were ever fulfilled, the county authorities have no right to grant a street-car company permission to lay its track along such road without the consent of the railroad company, and the laying of such track may be enjoined at suit of the railroad company.</p>

<p>1. Trade-Marks — Infringement—Injunction—Defenses.</p> <p>In a suit to restrain infringement of plaintiff’s trade-mark it is no defense that defendant had a license for its use, where the contract for the license requires defendant to keep hooks, make returns, and pay royalties or forfeit the license, and it is shown that defendant failed to perform these conditions, and that plaintiff notified him that the license was terminated.</p> <p>% Bame — Compensation,</p> <p>Nor is it any defense that compensation may be made, for plaintiff is not seeking to en Coree a forfeiture, hut insists that the license i s terminated by the terms of the contract.</p> <p>8. Bamm — Purchase op Machines.</p> <p>Nor is it any defense that defendant had purchased machines constructed on plaintiff’s order for the manufacture of the article under the liconso, where such machines were not made by plaintiff, and he derived no advantage from their construction or purchase.</p>

<p>Pensions — Estoppel—Commissioner's Rulings.</p> <p>The commissioner of pensions is not a judicial officer, and Ms rulings in granting a pension upon improper or fraudulent testimony do not ostop the government from recovering back moneys paid thereunder.</p>

<p>1. Limitation on Actions — Suspension op Statute.</p> <p>In Texas the filing of a petition in court is a commencement of the action, so as to stop the running of the statute of limitations; and, as the laws of the state require the clerk upon the filing of the petition to issue citation, any delay in the issuance of process to affect the running of the statute must result from the instructions or request of plaintiff or his authorized attorney.</p> <p>2. Master and Servant — Negligence op Master.</p> <p>Employers are bound to provide machinery reasonably safe and suitable for the use of their employe’s, and are liable for injuries caused by defects in such machinery which are or ought to be known to them, and which are unknown to the servant.</p> <p>8. Same — Assumption op Risks.</p> <p>A servant who remains in the service, knowing of a defect in the'machinery used by him, without giving notice thereof, assumes the risk of injury therefrom.</p> <p>4. Same.</p> <p>A servant will be presumed to know of defects which are obvious and open to observation.</p> <p>5. Measure op Damages por Torts.</p> <p>Id estimating damages for personal injuries, the jury may consider (1) such special expenses as were incurred by plaintiff by reason of the injuries; (2) the value of the time lost by him from his usual occupation by reason thereof; (3) fair compensation for mental and physical suffering; (4) the probable future effect of the injuries on his health; and (5) any diminution of his power to labor and pursue the course of life he might otherwise have done.</p>

<p>Extradition — Foreign Depositions — Authentication—Certificate.</p> <p>Act Cong. Aug. 3, 1882, § 5, provides that depositions taken in a foreign country to be used in extradition proceedings “shall be properly and legally authenticated, so as to entitle them to be received for similar purposes by the tribunal of the foreign country from which the accused party shall have escaped, ” and that the certificate of the principal diplomatic or consular officer of the United States in such foreign country shall be proof that they are so authenticated. Held, that such certificate is sufficient where it follows the words of the statute.</p>

<p>Criminal Law — Witnesses for Indigent Peksos.</p> <p>Rev. St. U. S. § 818, authorizing a judge to order witnesses to ho subpoenaed in behalf of an indicted indigent person, gives no authority to order subpoenas for one against whom a bill of indictment is pending before a grand jury.</p>

<p>Patents for Inventions — Equity Jurisdiction — Damages.</p> <p>A bill for infringement filed on tbe day before complainant’s patent expires, and which asks no injunction or other special form of equitable relief, is obviously intended to obtain damages and profits only, and cannot be maintained, since the proper remedy is at law.</p>

<p>Salvage — Pikemen Extinguishing Pike on Ship.</p> <p>Where a steam-ship with a cargo of cotton on fire came into port, and, in the absence of any private means, the fire department, consisting of volunteer fire companies, who receive no compensation from the city, were called upon, and an understanding had that they would be paid for their services, and on account of their presence the steam-ship was. permitted to come to the wharf, and the firemen, with two steam fire-engines, were engaged Jive and a half days putting out fire and discharging burning cotton, a salvage of $12,000 on a value of about $300,000, giving the firemen about $65 apiece, was given. The Case of The Mary Frost, 2 Wood, 306, examined and compared.</p> <p> (Syllabus by the Court.) </p>

In Admiralty. On exceptions to commissioner’s report. This was a suit for a collision between the propeller C. J. Sheffield and the steam-ship North Star, which was tried in February, 1890, before the district judge and nautical assessors, and resulted in a decree adjudging both vessels to be in fault, apportioning the damages, and referring the case to a commissioner to compute and report the same.

In Admiralty. On exceptions to commissioner’s report. This was a libel for collision between the steam-barge Oregon and the ■steamer Alaska, which occurred'on Saturday, November 27, 1886, ata point about six miles below Amherstburg, and near the mouth of the Detroit river. . The case whs suffered to go by default at the hearing, when a decree was entered for the libelant, with the usual order of reference to a commissioner to assess and report the damages.

<p>In Admiralty.</p> <p>FINDINGS OF FACT.</p> <p>(1) On various dates, between the 8th and 24th days of June, 1889, Thomas W. Howard & Co., of Montevideo, shipped on board the bark Nicanor, then lying at Montevideo, and bound for New York, 13,000 dry .hides, of various sizes, all in good order and condition, to be carried by the Nicanor to New York, and there to be delivered in like good order and condition, unto Messrs. Baring Bros. & Co., or their assigns, and the bark agreed, in consideration of freight stipulated to be paid, to transport the hides to New York, and deliver the same as aforesaid, and to that end issued bills’of lading at Montevideo to the shippers of the hides, which bills of lading, in due-course, were indorsed and delivered for value to Enos Wilder, a merchant of New York, who became the owner of the hides, and entitled to delivery thereof at New York.</p> <p>(2) On the 6th of July the Nicanor sailed from Montevideo, with the hides on board, bound for New York, and about 3 p. M. of September 2d, in fine weather, passed the light-ship at the south end of Five-Fathom bank, off the Delaware capes. The vessel was on her starboard tack, sailing in a north-westerly direction, and passed between the two lightships on Five-Fathom bank, leaving the lower one three or four miles on her port side, and she continued sailing in that direction until about 7 p. m., when, being within sight of land, she came about and sailed on her port tack, on courses between east and south, according to the wind, until 9 o’clock. A little before 8 p. m. she made the north-east end light-ship about ahead. At 9 p. m. the bark went again on her starboard tack, the light-ship at the north-east end of Five-Fathom bank then being between a quarter and a half of a mile south-east from her, and she maintained this starboard tack until the stranding hereinafter mentioned. At the time she tacked the master of the Nicanor proposed to make a north-east course, which would not carry him within the range of Ludlam Beach light. No pilot had been spoken, although pilots frequently board vessels to the southward of this place. The course of north-east, which the master proposed to take, was a proper course for sailing vessels hound from the light-ships to New York, and if made good would have carried the vessel clear of all obstructions. The wind was variable between south-east and east, and gave him a speed of about six knots an hour. There was a heavy haze, growing heavier towards the shore. About 11 r. M. the master saw and recognized Ludlam Beach light about abeam, bearing west, or west by north, at an estimated distance of eight miles. He kept it in sight with the aid of his glasses for about 15 minutes, and then lost it. The range of the light is Hi miles, and when the Nicanor had that light bearing westerly distant 8 miles she was about due north of the light-ship at the north-east end of Five-Fathom hank. This fact was patent, and should have been recognized by the master of the Nicanor. The Nicanor was at that point, within the ordinary range of Absecon light, though it was not visible, which indicated the existence of a heavy haze or fog along the shore. The vessel continued on her starboard tack after losing Ludlam Beach light. At 12 o’clock midnight the weather got thick around the vessel, with a heavy mist, and about an hour later she took the ground on the bar of Great Egg harbor. The point where she grounded was about north of the light-ship on the north-east end of Five-Fathom bank, and was about 6 miles soutli-westerly from Absecon light. The fog was still dense, and so continued throughout the night. Absecon light has a range of 19 miles, and was not seen by the navigators of the Nicanor at anytime prior to the stranding, though she had been within its clear-weather range since about 10 o’clock, and no light had been seen since Ludlam Beach light.</p> <p>(o) The yards of the Nicanor were not braced sharp, but so that she carried the wind about abeam. From the time of leaving north-east end light-ship the wind had been variable between east and south-east, and at the time and place of the stranding was about east by south. The vessel, from the time of leaving north-east end light-ship, had been in fact making a north course instead of a north-east course, as expected, and this had been due to the fact that the wind hauled somewhat to the northward, and to the existence of a current which set her somewhat on shore. The currents at that section of the New Jersey coast are variable, being governed by the winds, and the current which was running was the result of easterly winds previously prevailing. The fact that the currents are variable is a fact well known to navigators, and is set forth in the ordinary sailing directions for the coast. No soundings were taken by the Nicanor, though soundings would have been efficient to tell her navigators that she was not making good her expected north-east course, but was rapidly nearing the shore, and the importance of taking-soundings regularly and frequently when off this coast in thick weather is set forth in the ordinary sailing directions.</p> <p>(4) When the Nicanor failed on her starboard tack to make good a course sufficiently east of north to clear the coast she should have gone on port tack, or, if that was not a serviceable one, she should have anchored.</p> <p>(5) After grounding, the Nicanor endeavored, without success, to work into deep water. In the morning salvors came to her assistance, and a contract was made with them by the master, as follows:</p> <p>“Somers Point, Sept. 2nd, 1889.</p> <p>“I hereby agree to employ the Atlantic and Gulf Wrecking Co. to assist my vessel, now in distress, and to leave the matter of compensation for her services to be decided by the New York Board Underwriters, binding myself and owners to abide by said award.</p> <p>[S’d] “ J. F. Wolfe, Master Bkt. Nicanor.</p> <p>“John. Townsend, for Atlantic and Gulf Wrecking Co.”</p> <p>The master did not communicate with the cargo interests, or in any way attempt to bind them by this agreement.</p> <p>(6) On September 3, 1889, the Nicanor was floated. She then resumed her voyage, and arrived at New York on the 4th. A representative of the wreckers, who had remained on board, left the vessel on her arrival.</p> <p>(7) On September 5th the vessel was entered at the custom-house, on the 6th a delivery permit was obtained, and on the same day the discharge of the cargo began. No cargo had been damaged. No lien by the salvors was asserted against the cargo, and it was delivered to the respective consignees, and taken away as fast as unladen.</p> <p>(8) On September 6th a hearing was had before the New York Board of Underwriters to determine the amount of salvage, and the following award was thereupon made:</p> <p>“51 Wall Street, New York, September 6th, 1889.</p> <p>“By an agreement entered into between J. F. Wolfe, master of the Br. Bk. Nicanor, and John Townsend, for the Atlantic and Gulf Wrecking Co., the question of the amounts to be allowed the said salvors for services and assistance rendered to the Br. Bark Nicanor, stranded on Great Egg Harbor bar, September 1, 2, and 3, 1889, was referred to this board for decision and award. The board held a meeting on the 6th September, 1889, at which the respective parties were represented. After due consideration of the case, it was unanimously resolved • that the sum of fifteen thousand dollars be awarded to the Atlantic and Gulf Wrecking Company, in full for all services and assistance rendered to the Br. Nicanor while ashore on Great Egg Harbor bar.’</p> <p>[Signed in duplicate.] “W. I. Comes, Yice-President.”</p> <p>“Attest:</p> <p>“Ab. Spencer, Clerk of the Board, for Secretary. ”</p> <p>The members of the board, who fixed the amount of this award, besides the vice-president, were Mr. Moore, of the Atlantic Mutual Insurance Company, who had the largest insurance on cargo, and Mr. Bleecker, president of the New York Mutual Company, which was also an insurer of the cargo of the Nicanor.</p> <p>(9) Immediately thereupon the master went to Messrs. J. F. Whitney & Co., the agents of the barkcntine, and asked them to advance the money for him to pay the award. They agreed to do so, paid the salv-ors, and took the following receipt:</p> <p>“New Yokk, September 6, 1889.</p> <p>“lleeeivod of Messrs. J. F. Whitney & Co. (agents of the Bk. Nicanor) fifteen thousand dollars, in full for all services of every name and nature rendered the said bark while stranded at Great Egg harbor, as per award of the New York Board of Underwriters, this day.</p> <p>“Atuastio & Gulf WreokiNG-Co.</p> <p>“Per Wm. A. M. Kisatjss.”</p> <p>(10) Meanwhile an average bond, bearing date September 4th, had been prepared, and upon the making of the award, the signatures of the several consignees, or their underwriters, were obtained thereto. No signatures were affixed till the 6th, and all the signatures were not obtained until several days afterwards. The average bond provided that the different consignees, or their underwriters, should pay to “J. F. Whitney & Co., owners, or agents of the owners, of the said vessel,” whatever should he shown to be a charge upon said cargo, to he stated by Currey & Whitney, adjusters, according to law.</p> <p>(11) After the shipment of the hides and wool, and before the stranding of the Nicanor, the libelant, which is a marine insurance company, organized and existing under the laws of Great Britian, made marine insurance in favor of linos Wilder upon one-half interest of the said hides shipped by Thomas W. Howard & Co.</p> <p>(12) On September 11th Mr. James Lawson, on behalf of two of the libelants, (the British & Foreign Insurance Company, and the Universal Marine Insurance Company,) apparently unaware that the salvage award had been paid by the ship’s agents, called on the average adjusters, and offered to pay part of the award. On being told of the payment of the award, he requested a pro forma, statement to ho made up to show the proportion due from said two companies, and thereafter addressed the following letter to the vessel’s agent:</p> <p>“No. 4 Hanoveii Street, New York, September 17th, 1889.</p> <p>“Messrs. J. ff. Whitney <& Co., New York — Dear Sms: Nicanor. On the 11th inst. 1 called upon the adjusters, Messrs. Currey & Whitney, for the purpose of offering on behalf of the ‘ Universal Marine’ and the ‘ British & Foreign’ to send checks for our respective proportions of the salvage award. 1 was much surprised to learn that you had already settled with the salvors, and paid for our account, the amount wo owed. We did not authorize you to pay our share of the salvage, which we were ready, at any time, to pay ourselves. I therefore beg to notify you that I am still ready to give my check for my share of the award, and that I will refuse to recognize any claim for commissions for advancing or collecting the same.</p> <p>“Yours, very truly, James Lawson, Atty.”</p> <p>The following was inclosed in the above:</p> <p>. “New York, Sept. 14, 1889.</p> <p>“Messrs. J. F. Whitney &• Co., New York — Dear Sirs: IVe confirm our verbal tender made by Mr. Lawson, Wednesday, on behalf of the Universal and British & Foreign, to advance our share of the salvage contribution in ease of the Nicanor, and hereby give notice that we shall refuse to recognize any claim for commission for advancing. Yours, truly,</p> <p>“British and Foreign Marine Ins. Co., (Ld.) New York Branch.</p> <p>“L. A. Wright, Underwriter.”</p> <p>(13) To which Messrs. Whitney & Co. replied:</p> <p>“Nicanor.</p> <p>“New York, Sept. 18th, 1889.</p> <p>“Jas. Lawson, Esq., Atty. Universal Ins. Co., 4 Hanover at.. City— Dear Sir: Your favor of 17th, inclosing letter of British and Foreign Mar. Ins. Co. of 14th, received, and we note your remarks in regard to Ni-canor. Having already advanced to the master the sum required by him to pay the salvage award, we fail to understand why he should surrender the commissions properly due us for so doing. At the time the award was made there was no intimation from any underwriter concerned of a desire to provide funds. Our adjusters have prepared a pro forma statement, showing $2,700 as your share of the salvage award, (approximate.) If you elect to pay this amount, it will stop the charge of interest from date of payment; but in accepting it we do so with the express understanding that it is without prejudice to any of our rights in the case.</p> <p>“Yrs.,'&c., ° J. F. Whitney & Co.”</p> <p>(14) Thereupon the libelant paid b.y check inclosed in the following letter:</p> <p>“No. 4 Hanover Street, New York, September 20th, 1889.</p> <p>“Messrs. J. F. Whitney & Co., New York — Dear Sirs: Nicanor. Your favor of 18th inst. is received, together with a pro forma statement from your adjusters. I inclose herewith my check for $2,500, being an approximate proportion of my share of the salvage award. Mr. Wilder informs me that the hides are not worth more than $2.75 in New York; but, as your adjusters valued them for contribution at $3.00 each, I have made my cheek for the round sum above mentioned, instead of the amount stated by them. I will refuse to recognize any claim on your part for commissions for advancing or collecting $2,500. You were not authorized to pay the amount'I owed on account of salvage award.</p> <p>“Yours, very truly, ' --- James Lawson, Atty.”</p> <p>(15) On or about October 4th the general average adjustment, called “Statement of Salvage Charges,” was made up. Besides the salvage award there was included $1,261.24 for ropes and sheaves of the vessel, for her disbursements in procuring the salvors, for protest, survey, and adjusters’ fees, and agents’ commissions for advancing and collecting, and interest. The contribution thereby required from the interest insured by the libelants was $2,514.50.</p> <p>(16) The marine protest was at all times x>rior to the payment open to the inspection of the libelants. It showed that the vessel stranded at 1:80 r. m. , on Great Egg Harbor bar; that at 9 p. m. she had tacked to the north-east, the wind hauling to the south-east, the north-east lightship at Five-Fathom bank bearing south-east about half a mile distant; that at Up. m. she made the light on Ludlam beach, bearing west about eight miles distant; and that at midnight the weather was becoming thick, and a heavy mist overspread the sea. So far as the protest indicated no soundings were taken at any time while on this north-east tack.</p> <p>(17) There was no fraud or misrepresentation or concealment on the part of the ship's master, or of her agents or owners. The payment referred to in the eleventh finding was made to the ship’s agents, (who had themselves settled with and paid the salvors,) voluntarily, and without duress or detention of goods, and with means of knowledge of the facts which, it is now insisted, indicate the negligence on the part of the ship was the cause of the stranding.</p> <p>CONCLUSIONS OP LAW.</p> <p>(1) The stranding arose from negligence especially from the failure to take regular and frequent soundings.</p> <p>(2) That the stranding arose from negligence would constitute a full defense to any claim for contribution founded on the stranding.</p> <p>(8) The payment by the libelants on account of the adjustment was voluntary, and cannot be recovered back.</p> <p>(4) The libel is dismissed, with costs in both courts.</p>

<p>In Admiralty. Suit to recover damages caused by collision.</p>

<p>At Law. Motion to remand.</p>

<p>1. Removal of Causes — Time oh Application.</p> <p>Act, Cong. JVlai'cliff, 1887, requires a petition for removal to be filed before defendant is compelled to plead to the action under the state practice. Field that, under Rev. St. Ind. 1881, § 518, which enables the plaintiff to fix the day of defendant’s appearance by indorsement thereof on the complaint in casos whore the summons is returnable in term-time, but which nowhere prescribes a time for answering or pleading, defendant’s application for a removal, made after the appearance day so fixed, is in time, provide;] it is made at or before the time when an answer or pica is required to bo filed by a rule of the court, whether the rule be general or special.</p> <p>2. Same — Residence—Foreign' Corporation.</p> <p>The fact that, in compliance with Rev. St. Ind. 1881, § 8765, a foreign corporation doing business within tiie state has appointed a resident agent upon whom process may be served, does not constitute it a resident of tiie state; and, on being sued in a state court, it may assert its non-residence, and claim a removal to the federal court, under Act, Alarcti 3, 1887, providing for removal by non-residents. Disapproving Scott V. Cattle Co., 41 Red. Rep. 225.</p>

In Eqnit}'. On motion to remand. The Georgia Code provides: “See. 831. Courts oí ordinary have authority to exercise original, exclusive, and general jurisdiction of the following subjects-matter: (1) Probate of wills; (2) the granting of letters testamentary, of administration, and the repeal or .revocation of the same.” “Sec. 2421. The court of ordinary has exclusive jurisdiction over the probate of wills.

In Equity. On demurrer to intervention. In this canso the Anniston Loan & Trust Company files an intervention, setting forth as follows: “(1) Your petitioner, the Anniston Loan and Trust Company, a body corporate under the laws of the state of Alabama, respectfully represents unto your honors that on, to-wit, the 11th day of July, A. D. 1889, a decree was rendered by your honors authorizing and empowering Jacob G. Chamberlain, receiver of the Sheffield and 'Birmingham Coal,…

<p>Final Hearing in Equity.</p>

<p>Equity —Practice—Parties.</p> <p>Where a judgment creditor of a corporation files his bill in the circuit court to subject tho equitable interest of defendant in its mortgaged property to tho payment of his debt, the owner of tho company’s property, stock, and franchises will not ho permitted to become a party defendant on his petition alleging that ho has already commenced an equity suit in the state court against plaintiff to determino the amount of the debt and to set aside certain transactions between them, where tho chancery suit in the state court is in no way affected by the suit in the federal court, and the property is not paying expenses, and the intervention of petitioner would merely delay the suit.</p>

<p>Equity — Practice—Jurisdiction—Auxiliary Bill.</p> <p>After there has been a final decree and confirmation of sale in a suit for the partition and sale of land, an auxiliary bill seeking to set aside as fraudulent a contract made by the parties after'the final decree, and attacking the proceedings in that suit on the ground of want of proper service and other irregularities, cannot be maintained, since there is a complete remedy at law.</p>

<p>1. Abatement or Action — Dissolution of Corpobation — Revivob.</p> <p>Under Rev. St. Ohio, §§ 5879, 5880, which provide that no pending action against a corporation shall abate by its dissolution, and that execution on a judgment obtained in such action may issue against the trustees of the dissolved corporation in its corporate name, a suit in equity in a federal court, wherein the corporation has been declared insolvent, and a receiver appointed to administer its property as a trust fund for the benefit of creditors, need not be revived as against a receiver ap pointed by a state court, which has dissolved the corporation during the pendency of the proceedings in the federal court.</p> <p>"3. Same.</p> <p>On general principles of equity jurisprudence, a federal circuit court, which has obtained possession of the property of an insolvent corporation in proceedings instituted against it by its creditors, and which has been directed by the United Slates supreme court to make a distribution of such property among the creditors iu a specified manner, does not lose its jurisdiction by the dissolution of the corporation and the. appointment of a receiver by a state court; nor do such proceedings in the slate court necessitate a revival of the suit In the federal court.</p> <p>3. Judicial Sales — Appbaiskbs—Disinterested Freeholders.</p> <p>Rev. St.. Ohio, § 5889, which requires three“disinteresledfroeholders”to appraise lands before a judicial sale thereof, does not disqualify a distant relative of one of the creditors of a corporation, whoso claim represents only a small portion of its aggregate indebtedness, from acting as an appraiser on a judicial sale of its property for the benefit 0 f all its creditors.</p> <p>4. Same — Purchaser's Option to Take Additional Property.</p> <p>A judicial sale oí the property, of a corporation is not rendered invalid by the receiver’s announcement at such sale that the purchaser would also have the right, a! hie election, to take certain land, not covered by the order of sale, and acquired by the receiver during his administration of the corporate property.</p> <p>5. Sami — Isadequaot of Price.</p> <p>The mere fact, that the receiver, on taking possession, inventoried the property at a sum considerably greater than that fixed by the appraisers on a judicial sale 1 hereof eight years afterwards, Is not a ground for setti ng aside the sale for inadequacy of price.</p>

<p>Lien of Judgment — Recording—Territorial Jurisdiction.</p> <p>. Prior to 1888 the lien of judgments in the federal courts was co-extensive with their territorial jurisdiction. Act Cong. Aug. 1, 1888, (35 (U. S. St. 357,) provides that the judgments of the federal courts within any state shall be liens on property throughout such state in the same manner as the judgments of courts of general jurisdiction of the state: provided, that if the state laws require judgments of the state courts to be recorded in other counties before they become liens on lands situate therein, this act shall only be applicable in case provision is made for recording of federal court judgments also. Gen. St. Kan. 186S, c. 80, § 419, provides that judgments of state and federal courts shall be lieus-on the debtor’s lands in the county where rendered, and that “any judgment’’may be recorded in other counties, and become a lien from that time on the land of the debtor in such county. Hela that, under these two acts, a judgment in afederal court in Kansas was a lien only on the land of the debtor in the county in which the court was held, but that the lien might be extended by recording the judgment under the state law.</p>

At Law. This was an action at law by Herman A. Curiol against Alanson W. Beard, collector of customs for the port of Boston, and was,heard by tho court without a jury.

<p>Telegraph Companies — Delay in Delivering Message — Damages.</p> <p>The receiver oí a telegraphic message, the delivery oí which has been negligently delayed, cannot recover for mental suffering alone, unaccompanied with other in jury.</p> <p> (Syllabus by the Court.) </p>

<p>1. Garnishment — Procedure—Judgment on Answer.</p> <p>Plaintiff, having obtained a judgment against defendant, garnished a corporation for which defendant was working, whose answer was as follows: The persons forming the corporation, among whom was defendant’s wife, agreed to devote their time and services to it without compensation; but it was agreed that defendant’s wife should contribute the services of her husband instead of her own, and that, if necessary, $35 a week was to be paid to her for her living expenses. This sum was paid her for a given time, but there was never any agreement whereby the corporation was to pay defendant anything, or whereby it employed him at all, except as a substitute for his wife, under said agreement. Held, that plaintiff was not . entitled to judgment on the answer, as it does not on its face show any liability of the garnishee to defendant.</p> <p>2. Same — Conflict of Laws — Exemptions.</p> <p>Where defendant is a resident of Illinois, and wages due him were earned there, the situs of the debt is Illinois, though plaintiff may have garnished the debtor while he was in Iowa, and by virtue of the principles of comity the Iowa court will apply the Illinois exemption laws to .ppph wages. Limiting Mooney v. Railroad Co., 60 Iowa, 316, 14 N. W. Rep. 343.</p>

<p>1. Master and Servant — Negligence—Foreman’s Authority.</p> <p>Where an employer places an employe as foreman in charge of a piece of work requiring several days’ labor, away from his own factory, and of such a nature as may reasonably be supposed to require the use of appliances for raising and lowering a heavy piece of iron, but does not furnish such appliances, the foreman has implied authority to provide blocks and tackle by borrowing or otherwise, and if he obtains and uses insufficient ones, whereby a workman under his control, without fault on his own part, is injured, the employer is liable.</p> <p>2. ■ Same.</p> <p>The fact that at the commencement of the work sufficient blocks and tackle were in the required position, and were used by the foreman in doing part of the work, does not rebut the presumption of authority to procure what was needed, when such blocks and tackle were placed there by a third person, who had borrowed them for his own use in doing a different part of the work, and who afterwards removed them.</p> <p>3. Same — Contributory Negligence.</p> <p>Plaintiff was working in a dark place, on the interior of a large iron hoop, when the latter was raised and held suspended by rope and tackle, and he was directed to remove some dirt and stones from underneath it. While doing so the rope broke, and his hand was injured. He testified that he had a monkey-wrench in his hand, but it was crooked, and he could not use it, and that he was removing a stone weighing four or five pounds with his hands when the injury occurred. Held no sufficient proof of contributory negligence to warrant the court in directing a verdict.</p>

<p>At Lav. Charge to the jury.</p>

<p>Limitation or Actions — National Banks.</p> <p>Actions by the receiver of a national bank against stockholders for assessments on the stock are subject to the state statutes of limitations.</p>

At Law. Action of ejectment. The act of congress of June 3, 1856, granted certain lands in the upper peninsula to aid in the construction of certain railroads, one of them having two branches, running from the Wisconsin line to Marquette and Ontonagon, respectively.

<p>Municipal Corporations — Liability bob Debts.</p> <p>Act La. 1877, (Extra Sess.) No. 30, p. 47, provided that no municipal corporation should appropriate or expend any money in any year in excess of the actual revenue for the year; that the revenue for each'year should he devoted to the expenditures for that year; and that any surplus might he used to pay the indebtedness of former years. Act La. 1886, No. 109, p. 205, provided that the council of the city of New Orleans should each year reserve 20 per cent, of the revenue for that year for the purpose of public improvement. Meld, that a creditor of said city could not compel the council to pay him out of said reserve fund for debts contracted after 1877, since such reserve fund did not constitute a surplus, nor did the former act apply to debts contracted after its passage.</p>

<p>Information for Obstructing the Mail.</p>

<p>Stealing Letters non the Mail — Intent.</p> <p>Whore ahoy under 13 years is tried under Rev. St. U. S. § 5469, ior stealing letters from the mail, and it appears that he took them from boxes in the post-office, carried them home, threw them carelessly aside, without opening or mutilating them, and, when asked about them by the postmaster, at once brought them back, it is a question for the jury whether he took them with criminal Intent, or from a spirit of boyish mischief, and they may convict him or acquit him accordingly.</p>

<p>Petition for Writ of Habeas Corpus.</p> <p>The defendant was arrested on complaint of one Hovell, an inspector ■of customs, which charged the defendant with having assaulted him while he. (complainant) was at pier 25 North river, in the discharge of his duties as such inspector. On the examination the following' facts appeared: That the complainant was an inspector of customs, detailed to pier 25 North river, there to await the arrival of a certain vessel, to watch the discharge of her cargo, and to superintend the same. The complainant was sitting in a small frame house at the head of the dock, which the defendant entered. As he went in, the complainant was reading a newspaper, and at that particular time was not engaged in performing any of his duties as inspector.of customs. Some discussion took place between the complainant and the defendant, when the latter struck the complainant.' ,At the close of the case for the government, defendant’s counsel moved for the discharge of the defendant, upon the ground that the assault was not committed on the complainant while he was acting in the discharge of his duties as an inspector of customs, and therefore, the case did not come within the provisions of section 544? of the-Revised Statutes of the United States. The commissioner denied the motions No evidence then being offered in behalf of the defendant, the commissioner held the defendant in bail, to await the action of the grand'jury. This is a proceeding to review the action of the commissioner by writ of certiorari and habeas corpus.</p>

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

In Equity. Upon petition of plaintiff for leave to dismiss its bill, and also upon demurrers to the amended and supplemental bills. The amended bill was filed in this case under Rev. St. § 4918, by the assignee of Camille A. Faure, to whom, on .January 8, 1882, patent No. 252,002 was granted to procure an adjudication of the invalidity of ¡latent No. 837;299, issued March 2, 1886, to Charles F. Brush for a secondary. battery.

<p>1. Patents for Inventions — Presumption of Priority — Infringement and Interference.</p> <p>Where two patents interlere, there is a rebuttable presumption that the inventor who first applied for a patent was the first inventor. '</p> <p>8. Same — Right to Damages.</p> <p>Where two patents interfere, and the later in date was first applied for, the owners of the latter cannot have damages for an infringement by the owner of the other without first obtaining an adjudication under Rev. St. U. S. § 4918,providing for suits to determine questions of interference, that the other is void.</p> <p>8. Samis — Phkading.</p> <p>A count under that section for an interference and a count for infringement may be joined in the same bill.</p>

<p>Patents for Inventions — Infringement—Nut-Looks.</p> <p>In a patent for a nut-lock, claim 1 is for a combination, with a nut having a notched or serrated face, of a rectangular washer, split across one of its sides, the ends thus formed being bent in opposite directions, and “each being beveled from one side to the other, to form a knife edge, ” substantially as described. Claim 2 also describes the ends of the split washer as being beveled to form a knife edge. In the specifications the ends of the washer are said to have “a sharp edge, ” and “sharp spring-lips, ” to engage the serrated surface of the nut. Held, that the patent must be restricted to washers having beveled sharp edges, and the use of similar washers with square edges does not constitute an infringement.</p>

<p>1. Patents for Inventions — Dky Closets — Novelty.</p> <p>In patent No. 314,884, granted March 31, 1885, to Isaac I). Smead for a dry closet in which air is used to desiccate fecal matter, the first claim is destitute of novelty, everything essential to the invention stated having been described by Henry Ruttan in his book published in 1863; but the second and third claims are not without novelty, the improvements on the Ruttan system being a vault in the form of a tube so arranged as to receive deposits distributed along its surface in comparatively small quantities at any given place.</p> <p>2. Same — Invention.</p> <p>Patent No. 352,157, granted Isaac D. Smead for improvements in his closet, by which air is let into the vault from the outside of the building, and a fan employed in the vent-shaft to create a draught, is void for want of invention.</p> <p>3. Same — Anticipation.</p> <p>In patent No. 363,971, also granted to Isaac D. Smead for improvements in the closet, the first claim is not without novelty, the transverse partition located in the vault being serviceable, and adding somewhat to the efficiency of the closet; in view of the prior patent to W. S. Ross, the second claim is without novelty.</p>

On Demurrer. This action is based upon reissued letters patent, No. 10,419 and No. 10,420, now owned by the complainant. Tho original patent, No. 248,-094, was granted to Charles C. Gilman, October 11, 1881, for an improvement in fire-proof composition. Subsequently, tho patent was surrendered and issued in two divisions.

<p>Admiralty — Review on Appeal.</p> <p>In cases involving questions of fact only, depending on conflicting evidence and the credibility of witnesses, the circuit court in admiralty will not disturb the decrees of the district court, where there is no preponderance of evidence, and no additional evidence offered on appeal. Following Du/uccm v. The Nicholls, ante, 302.</p>

<p>In Admiralty. .First suit to recover damages for non-delivery of cargo of ice. Second suit to recover for damage to the ice during transportation. Third suit a cross-suit to recover freight for transportation of the ice, and nse of the vessel during delivery.</p>

<p>In Admiralty. Libel by seamen for wages.</p>

<p>Collision — Between Steamers — Evidence.</p> <p>A. steamer and a tug collided in Long Island sound on a dark night. Each had proper lights burning. When they first saw each other they were a mile apart, approaching nearly end on, each going at the rate of eight miles an hour. On sighting the steamer the tug ported her wheel one point, and when about half a m do from 1 he steamer ported her wh eel another point, and blew one whistle, whereupon the steamer blew two whistles, and shaped her course across the tug’s bow, under a starboard wheel. The tug immediately sounded a danger whistle, and hacked at lull speed, but too late to avoid the collision. Shortly altor the steamer sa w the tug, the former starboarded her helm to avoid a small sailing vessel. Meld, that the steamer was responsible Cor the collision.</p>

<p>At Law. ,On demurrer to plea in abatement.</p>

<p>District Courts — Jurisdiction—Receiver of National Bank.</p> <p>Rev. St. U. S. § 563, gives the district courts jurisdiction of “all suits at common law, brought by the United States, or any officer thereof authorized by law to sue. ” Act Cong. Ahg. 13, 1888, (35 St. at Large, 433,) confers the same jurisdiction on the district courts, and declares (section 4) that for jurisdictional purposes national banks shall be deemed citizens of the state in which they are located, but tbat this provision shall not affect the jurisdiction of the federal courts “in cases commenced by the United States, or by the direction of any officer thereof, or cases for winding up the affairs of any such hank. ” Held, that the district court has jurisdiction of an action by the receiver of an insolvent national bank to collect assessments on stock. Affirming 41 -Fed. Rep. 401.</p>

At Law. Motion to remand. The plaintiff, a citizen of Wisconsin, brought suit in a state court against the defendant, a citizen of Illinois, to recover the sum of $1,004.07. The defendant made timely answer, pleading, inter alia, a counter-claim in the sum of $2,500, and simultaneously therewith filed in the state" court its petition for the removal of the cause to the federal court.

Bill in Equity by August Hartje, trustee of Waldemar A. Schmidt, and of Henrietta Hartje and said Waldemar A. Schmidt and John H. Mueller, and said August Hartje and said Henrietta, his wife, in right of said. Henrietta, against the Vulcanized Fibre Company of Wilmington. The assignment from Schmidt to Hartje was for three named patents.

<p>1. Mortgages — Foreclosure Sale — Rights or Purchaser's Assignee to Writ op Assistance.</p> <p>AiTer a sale on the foreclosure of a railroad mortgage, the court directed its receiver to turn over the possession of the road to an assignee of the purchaser at the sale; the court reserving the right to resume the possession if the assignee should thereafter refuse, to pay into court any part of the purchase price, field, that this order brought the assignee within equity rule 10, which provides that every person, not a party to a cause, in whose favor an order has been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and that a writ of assistance would issue in favor of such as ■ signee against another railroad company which unlawfully refused to surrender possession of part of the road.</p> <p>2. Same — Mortgagor’s Contract Pendente Lite — Disclaimer by Purchaser.</p> <p>.Pending the foreclosure of a railroad mortgage, the mortgagor leased t,o another railroad company an equal right to the use of a designated part of the road for a period of 20 years. The foreclosure decree provided that the purchaser at the sale should he at liberty to abandon or disclaim any leasehold interest or contracts or other agreements entered into by ihe mortgagor after the commencement of foreclosure proceedings. Held, that the purchaser’s right to abandon and disclaim the lease, as provided in the decree, was not affected by the receipt of the rent by the receiver during the pendency of the foreclosure proceedings, andtiis acquiescence in the loase, and that all right of possession in the lessee ceased on being notified of the purchaser’s intention to disclaim and abandon.</p> <p>3. Same — Waiver oe Right to Disclaim.</p> <p>Shortly after the foreclosure sale, the purchaser notified the lessee of its intention to disclaim the lease, and forbade the latter from using the road at the expiration of 30 days from the date of the notice. Held, that the receipt of the rent for these 30 days by the purchaser, which was expressly stated to be without prejudice to its right to abandon the lease, was not such a consent' to the lessee’s possession as to constitute it a tenant from year to year, within the moaning of Rev. St. Ind. 1881, |§ 5207, 5208, which provide that all general tenancies where premises are occupied with the consent, either express or constructive, of the landlord, shall be deemed tenancies from year to year, to be determined by three months’ notice to be given the tenant before the expiration of the year.</p> <p>é. Federal Courts — Jurisdiction—Writ oi? Assistance.</p> <p>Where the undisputed facts show that the purchaser, after the foreclosure sale, never waived its right to abandon and disclaim the lease, the federal court in which the mortgage was foreclosed, In the exercise of its primary jurisdiction over the matter, will issue a writ of assistance in favor of such purchaser, notwithstanding the issuance of a temporary injunction by a state court, in which the purchaser appeared, restraining it from interfering with the lessee's possession.</p>

<p>1. Receivers — Sams — Assumption op Liabilities bp Purchaser — Allowance op Demands.</p> <p>Where a railroad which has been in tho hands of a receiver appointed by the circuit court is sold, and the purchaser, as part of tho consideration, covenants to discharge all existing debts and .liabilities o£ the receivership, it is the duty of such court to protect the purchaser against all demands which arc not just and proper demands against the receiver, and to that end to require all such demands to bo presented to it for allowance.</p> <p>2. Same — Action in State Court — Jurisdiction op Federal Court.</p> <p>Where, on the strength of this covenant, a person brings an action in the state court against the purchaser to recover for a tort to his realty committed by tho receiver, such demand being primarily chargeable on the fund in the hands of the federal court arising from the sale, such court will restrain the prosecution of the action, and require plaintiff to present his claim to it, for a judgment thereon in the state court would entitle him to satisfy it out of any property subject to levy iu the hands of the purchaser.</p> <p>3. Same — Waiver by Appearance.</p> <p>The purchaser’s appearance in the state court is no waiver of its right to have the proceedings therein restrained, where the nature of the suit did not at once appear, but it invoked the jurisdiction of the federal court as soon as its right to do so was revealed by the pleadings.</p>

<p>1. Skevioe OF PltOCESS — Fokeion CourOKATIOXS.</p> <p>Where an action against a foreign corporation, which neither does business nor has a place of business or property in New York, is begun under Code Civil Proc N. Y. S 433, by service upon a director thereof, found in the state, but not there in any official capacity or in the business of the corporation, the court acquires no jurisdiction.</p> <p>3. Same — Removal or Causes — Dismissal or Sum.</p> <p>Defendant may have such suit dismissed on the ground that the state court acquired no jurisdiction even after removing it to the federal court</p>

<p>1. Review oíi Appeal — Evidence not Preserved in Record — Instructions.</p> <p>Where no evidence is nroserved in the bill oí exceptions, an instruction directing a verdict for the plaintiff will not be questioned on appeal.</p> <p>S. Same — Error not Complained or.</p> <p>Where a defendant brings error, and the plaintiff does not complain of the judgment, though it is for less than he is entitled to, the error cannot he corrected in the circuit court.</p> <p>S. Witness — Use op Memorandum.</p> <p>A witness may, when testifying, refresh his recollection by the use of a memorandum made by himself.</p>

<p>1. Public Lands — Cutting- Timber — Subsequent Purchase.</p> <p>Where a homesteader, who has never had possession of the land included in his homestead claim, and whose entry has been canceled, buys the land from the government, such purchase does not pass title to timber which he had cut from the land before his purchase, and'after he-had learned that his homestead entry was invalid. ... •</p> <p>,2. Same — Measure of Damages.</p> <p>In an action by the United States for the value of timber bought by defendant from a trespasser who had knowingly out it from the public land, the measure of damages is the value of the timber at the time of the purchase.</p>

<p>Indictment for Violation of Postal Laws.</p>

<p>1. Patents foe Inventions —Ceat Separator — Invention.</p> <p>Letters patent No. 322,393, issued July 14,1885, to C. & A. Potts for improvements in disintegrating clay, consisting of the combination with a revolving cylinder of steel bars, fitted into longitudinal grooves in its periphery, so adjusted as to present sharp corners projecting above the surface of the cylinder, and a strong plate mounted on a shaft, so as to swing in bearings on the frame, and alternately approach and recede from the cylinder, are void for want of invention, all the elements of the device being old, and their combination being merely the exercise of mechanical skill;</p> <p>2. Same.</p> <p>Letters patent No. 368,898, issued August 23,1887, to C. & A. Potts for improvements in disintegrating clay, consisting in the combination, with a rotating cylinder longitudinally grooved, and carrying cutting bars pi'ojecting beyond the grooves, of a smooth-faced rotating cylinder, adapted to carry the clay and hold it against the grooved cylinder, are void for want of invention, all the elements of the device being old, and their combination being merely an exercise of mechanical skill.</p>

<p>Aumisamt—Pkactice—Eifty-Nistth Rule.</p> <p>Where the owner of the steam-ship A., which had been libeled by a cargo-owner, caused a steam-ship company to be made co-defendant under the fifty-ninth admiralty rule, and the evidence upon the trial showed clearly that the libelant was entitled to recover against the A., though it did not clear up the dispute between the co-defendants, held, that, the libelant might take a decree against the A., and the caso should be continued as between the two defendants, rather than to send thorn to a new suit.</p>

<p>Libel for freight by J. Harrison, master of the steamer Weatherby.</p> <p>The charter-party was in the ordinary form of a freighting charter-party for the full capacity of the vessel, under which cargo could be received from other freighters, as in a general ship. The clause for payment of freight, as it stood in the printed form, read: — “The'freight to be paid on unloading and right delivery of cargo at the rate of nine shillings sterling per twenty cwt. delivered.” The word “delivered*’ was str-u.ck out, and “intake weight” substituted.</p> <p>A delivery of all cargo, except what was lost by excepted peril, is a right delivery of the cargo. Shipping Co. v. Armitage, L. R. 9 Q. B. 99; The Norway, 3 Moore; P. C. (N. S.) 245; Robinson v. Knights, L. R. 8 O. P. 465; Carv. Carriage by Sea, § 549; The Querini Stanvphalia, 19 Red. Rep-. 126. Freight is payable on cargo sold as perishable with shipper’s knowledge and consent. Maclachlan on Merchant Shipping, § 436.</p> <p>Iso freight is coilectible on'cargo lost by peril of sea. 1 Pars. Mar. Law, 217; Abb. Shipp. 430; Frith v. Barker, 2 Johns. 327; Spaight v. Farn-worth, 5 Q. B. Div. 115. It is where a lump sum is paid for the hire of a vessel that such sum can be recovered where cargo is partly lost, lioh-inson v. Knights, Shipping Go. v. Armitage, supra. No freight is payable on cargo sold, and not delivered. Armroyd v. Insurance Co., 3 Bin. 437; Hurtin v. Insurance Co., 1 Wash. 0. 0. 530.</p>

<p>In Admiralty. On petition for limitation of liability.</p>

<p>In Admiralty. Libel for damages for non-delivery of part of a cargo of oranges and lemons. Assessment of damages.</p>

<p>In Admiralty.. Suit for damage by collision, and suit to recover $5,000 for death of plaintiff’s intestate.</p>

<p>Collision—Lights not Visible to Attentive Lookout.</p> <p>When several persons on watch, attentive to their duties, can see no lights on an approaching vessel during a considerable period when they ought to be seen, the defect will be ascribed to the other vessel, even when the precise reason why the lights are not seen does not appear; and specially so where circumstances appear that might have caused obscuration of the lights.</p>

<p>Comjsion — Between Steamers — Bend in River — Duty'oe Ascending Boat.</p> <p>Where aif ascending propeller, while approaching a narrow and dangerous bend in the Manistee river, receives notice that a steamer is entering the bend from above, it should wait until the other has descended, and if it attempts to pass in the bend, and a collision occurs, it will be held in fault.</p>

<p>1. COLLISION BETWEEN STEAM-VESSELS — BEND IN RrVJEB — Duty OF DESCENDING Ste vmek.</p> <p>An ascending propeller, when approaching a dangerous bend near the mouth of the Manistee river, gave the signal required in such case by rule 5 of pilot rules for lakes and sea-hoard, and, receiving no answer, proceeded. A descending steamer failed to give the signal, and there was evidence that the signal from below was not heard by her officers. When still 1,000 feet above the bend, she was notified by another that the propeller was coming up the bend, but proceeded on her course, and shortly afterwards signaled that she desired to pass on the south side, which was promptly answered by assenting signals. At this time the propeller had entered so far Into the bend that it would have been dangerous to retire, and, proceeding, a collision occurred. Held, that the descending steamer was in fault.</p> <p>2. Same — Interpkt.tation of Signals.</p> <p>The assenting signal of the propeller could not be regarded as an invitation to proceed, since it was required by the rules, and was merely an indication that the si earner’s desire to pass on the south side of the river was knowu and acquiesced in.</p>

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

At Law. Acts (long. 1887, c. 378, § 1, (24 St. IT. S. 552,) and Acts 1888, c. 866, § L, (25 St. IT.

<p>At Law. Indictment for breach of customs laws.</p>

<p>On Motion to Bet Aside Service of Process.</p> <p>Act Cong. March 8, 1887, provides, inter alia, that no suit shall be brought in the federal circuit and district courts in a district other than that ot defendant’s residence.</p>

On Motion to Remand to State Court. Act Cong. March 3,1887, provides, inter aMa, that the circuit and district courts shall not take cognizance of actions “to recover the contents * * * of any chose in action in favor of any assignee,” unless such courts would have had jurisdiction of such actions before the assignment was made.

<p>1. Juiusdiction or Fedeual Court — Actions Arising undeb Laws or the TJnited States.</p> <p>A suit in which the plaintiff claims to have acquired a vested right to land by full compliance with the United States homestead law, and seeks to obtain a conveyance of the title from defendants, claiming the land under a patent issued to another, is a case arising under the laws of the United States, and within the jurisdiction of a United States circuit court.</p> <p>2. Same — Motion to Remand.</p> <p>Such acaso, commenced in a district court of the territory of Washington, and which was pending at the time of the admission of the state of Washington, was transferred to the United States circuit court after the papers and record in the case had passed into the custody of the clerk of a state court, and after a stipulation had been signed and filed in said state court, whereby the parties agreed to submit the ease to said court for its decision, and after the defendants had filed in said court a written request to have the case so transferred, but before the court had acted upon said stipulation, or done any act amounting to an assumption of jurisdiction of the case. Held, that the request was filed in the proper court, and was in timo, and that a motion to remand for want of jurisdiction must he denied.</p> <p>3. Public Lands — Cancellation op Homestead Entry.</p> <p>The decision of the supreme court in Lee v. Johnson, (llfi U. S. 48, 6 Sup. Ct. Rep. 249,) held to be conclusive upon a circuit court in a case involving identical legal propositions; and, without presuming to discuss the questions, held, in accordance with that decision, that in a contested case before the land department, the question at issue between the parties being as to the abandonment of a homestead, where' the secretary of the interior found from the evidence that the contested was not a bona fide homostead claimant, he did not exceed his jurisdiction in directing a cancellation of the entry, although the particular objection to the claim was not raised by the allegations of the contestant. ' • ,</p> <p>4. Equity Practice — Rights Involved.</p> <p>In a suit by a private individual against the holder of a title to land by patent from the government only the plaintiff’s right can be tried; and questions as to noncompliance on the part of the patentee with the requirements of the law under which the patent was issued cannot bo relevant.</p> <p>5. Res Adjudícala — Decision or Secretary oe Interior.</p> <p>In the absence of fraud, and where no error is shown in deciding a distinct question of law, a decision of the secretary of the interior, holding a homestead claim to be invalid, and directing the cancellation oiisthe entry, is final, and not subject to review' in the courts.</p> <p>6. Witness — Admissions op Decedents.</p> <p>The plaintiff is incompetent to testify as to admissions of a deceased person, through whom the defendants deraign title to the property in controversy, made after having parted with his title, in a case wherein some of the defendants are sued in a representative capacity, as executors of a deceased party, who is accused of fraud and conspiracy; such testimony being offered with the object of proving such accusations.</p> <p>7. Kkaud — Pleading.</p> <p>Relief on the ground of fraud cannot be granted upon mere inferences and suspicions.</p> <p> (Syllabus by the Court.) </p>

<p>Clerk’s Fees — Deposit op Earnest Money.</p> <p>Rev. St. U. S. § 995, provides that ail moneys paid into any court of the United States or received hy the officers thereof in any cause pending or adjudicated in such court shall he f orthwith deposited with the treasurer, an assistant treasurer, or a designated depositary of the United States, provided that the delivery of such money upon security, and according to agreement of parties, under the directions of the court, may he allowed. The fee-hill (Rev. St. U. S. § 838) allows “for receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept, and paid. ” Held, that where a decree ordering the sale of mortgaged railroad propei-ty requires the payment of earnest money into court at the time of the sale, to he returned in case the same is not confirmed, and afterwards, hy consent of. patties, the decree is modified so as to allow certified hank-check, to he given instead of cash, and requiring the commissioner to deposit the same with a trust company, the clerk of the court is not entitled to receive any percentage thereon as a fee. Distinguishing Bx parte Prescott, 3 Gall. 146, and Thomas v. Railway Co., 37 Fed. Rep. 548.</p>

<p>Receivers — Combinations to Restrain Trade.</p> <p>Defendant, and his partner sold their bakery business to complainant corporation, receiving payment in its stock, and defendant leased to it the premises where the business was conducted, and contracted to carry it on as the purchaser’s agent, for a salary. After operating under this arrangement for a time, he repudiated the sale, resumed possession under the old firm name, and refused to account to complainant. The bill was brought to enjoin him from assorting a hostile claim, for an accounting, and a receiver. Defendant, and his partner as intervenor, filed a cross-bill for rescission of the sale for fraudulent representations, and tendered back the stock. Complainant was practically a “ trust, ” organized to monopolizo the business, and had already secured control of 85 leading bakeries in 13 different states, held that, while a case was made for a receiver, pending litigation between ordinary parties, the prayer would be denied, as equity would not encourage a combination in restraint of trade, and probably illegal, under Act Cong. July 2,1890, “to protect trade and commerce against unlawful restraints and monopolies, ” and Act La. July 5, 1890, for the same purpose.</p>

<p>1. Municipal Corforations — Street Improvements — Waiver op Notice — Due Process ov Law.</p> <p>Aá owner of land abutting on a street, by petitioning for its improvement, and agreeing, not only to pay his own assessments, but also to answer for any deficiency in the collectibility of the assessments against other abutting owners, waives his right to notice or an opportunity to be heard before the assessments are levied; and the proceedings of the city authorities, who levied the assessment in the exercise of the power conferred on them by law, and in compliance with the petition, cannot af terwai-ds be impeached by such abutting owner, as being without due process of law, for the lack of such notice or an opportunity to be heard.</p> <p>3. Same — Pendenct oe Action in State Court.</p> <p>The institution of an action in a state court by the city against the abutting owner for the collection of the assessment affords him the opportunity of presenting every objection, either under the constitution of the United States or under the constitution and laws of the state, going to the validity of the assessment; and the judgment rendered in such action will constitute due process of law.</p> <p>3. Same — Federal Question.</p> <p>Whether or not complainant is personally liable for an assessment made for the improvement of a street before he became the owner of property abutting thereon is not a federal question.</p>

<p>1. Deposition — Motion to Scppbbss — Waivisk op Objections.</p> <p>failure to make a timely motion to suppress a deposition is a waiver of any objection as to the manner of taking it.</p> <p>2. Same — Notice op Taking.</p> <p>Notice under Rev. St. U. S. _§ 863, that plaintiff will proceed to take depositions of certain witnesses in three different cities on the same day, is not such reasonable notice as the statute requires, and such depositions should be suppressed.</p> <p>8. Same.</p> <p>Where defendants’ counsel appears and objects to the taking of the depositions on the ground that the notice is unreasonable, the fact that he afterwards pro-eeeded to cross-examine the witnesses is not a waiver of the objection.</p> <p>4. Same.</p> <p>It is not an answer to a motion to suppress such depositions that defendants have given a similar notice of intention to take depositions.</p>

<p>Claims against United States — Authority—Postmaster General.</p> <p>Under Act Cong. March 2, 1861, §10, (12 St. at Large, 220,) providing tbat“no contract or purchase on behalf of the United States shall be made unless the same is authorized by law, or is under an appropriation adequate to its fulfillment, ” the postmaster general is not empowered to lease on behalf of th6 government a building for a post-office for the term of 20 years, and such lease, taken by the postmaster in May, 1870, cannotx be enforced against the government after it has vacated the premises.</p>

<p>1. Taxation op Costs — Deposition Fees — Traveling Expenses.</p> <p>In the second circuit, the rule is settled in favor of taxing the fees for taking depositions before the examiner, pursuant to equity rule 67 of the supreme court of the United States.</p> <p>2. Same — Printing Records and Bribes.</p> <p>In the second circuit, the charge for printing records and briefs in compliance with the circuit court rules will be taxed.</p> <p>3. Same — Witness’ Expenses.</p> <p>Where, in taking depositions, an adjournment for so long a time as to warrant witnesses in returning home between appearances is had by the -fault of the unsuccessful party, the additional traveling expenses will be taxed to him.</p>

<p>1. Action foe Timbee Cut ox Pbbuc Land — Burden of Proof.</p> <p>Where, in an action by the United States to recover the value ol logs cut on public land, the plaintiff’s evidence shows that the defendant purchased from the trespasser and converted to his own use a large number of logs, among which were some of those cut from the public land, the burden is on the defendant to show that all the logs so bought by him were not so out.</p> <p>Ü. Confusion of Goods.</p> <p>Where the logs so cut were mixed in the river with a large quantity of other logs, so that the identical logs could not be conveniently separated, the United States thereby acquired a proportionate interest in the entire mass of logs, under Rev. Civil Code La. art. 538, which provides that, “when a thing has been formed by a mixture of materials belonging to different proprietors, * * * if the materials cannot, be separa! ed without inconvenience, their owners acquire in common the pro rata of the thing.”</p>

<p>Action fob Timber Cut from Puisi.io Land — Veb wot.</p> <p>In an action by the united States against an executor lor the value of timber cut. Irom public land and sold by the trespasser to defendant’s testator a verdict finding that- the trespasser cut the logs, and that defendant got them without finding that the logs were cut Irom the land described in the petition, or from government land, oí- that they ever came into the possession of defendant’s testator, is insufficient to sustain a judgment against defendant.</p>

<p>At Law. Error to district court.</p>

<p>At Law. Error to district court.</p>

<p>1. Master aíto Sekvast — Negt.iguííce—Danoekous Premises — Province 01- Jury.</p> <p>In an action for personal injuries, it appeared that plaintiff was employed by defendants in an engine-room, in which there was a steam-heater, composed of coils of pipe, and in which defendants kept dynamite and boxes of fulminating caps. The latter were attached to fuses after being brought to the engine-room. This had been done by others until a few days before the accident causing the injuries sued for, when plaintiff was ordered to do it. Plaintiff was injured by an explosion which occurred, as he testified, one morning as he entered the engine-room. The heater was very hot at the time, somo of the caps and dynamite were quite near it, and the engine jarred the building. The caps were extremely dangerous to one not understanding them, and the defendants failed to give the plaintiff warning of the danger. There was conflicting evidence as to how the accident was caused, and it might have been caused by the way plaintiff handled the caps. Held, that it was proper to submit the case to the jury.</p> <p>2. Same — Notice or Danger.</p> <p>Whore the master puts the servant into employment attended with dangers of a latent character, he is bound to give tho servant information of the incidents of the peril in which he is placed, if it is not reasonably to be supposed that the servant understands them.</p>

<p>1. Immigration — Contract Labor — New Industries.</p> <p>Defendants contracted with a resident of France to come to this country and work for them in the manufacture of “French silk stockings, ” which were shown to be articles materially different from ordinary silk stockings. It was shown that there had been manufactured here stockings whereof the feet were the same as those of the, “ French silk stockings, ” but the legs were different, and made by different machines. Held, that the manufacture of the complete “French silk stockings” was a new industry, within the exemption of S3 St. ü. S. p. 332, c. 164, imposing a penalty on the importation of contract labor.</p> <p>8. Same — Necessity—Evidence.</p> <p>Machines for the manufacture of “French silk stockings” were already in use in this country for knitting the feet, and there was evidence that a skillful workman might learn to run them in a few weeks, it was shown for defendants that their machines stood idle until they imported the Frenchman in question, and that they had advertised for mea to run them, but had failed to find any that were competent. Held, that the evidence did not disclose such efforts on defendants’ part as to show a necessity to resort to foreign workmen, and they ar-e liable for the penalty.</p>

At Law. Action to recover back customs duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The merchandise involved in the present suit was imported by the plaintiff's from Europe in April and Juno, 1889, and was classified for duty by the defendant, collector, as “manufactures of iron,” under Schedule 0 (Heyl, now, paragraph 216) of the Tariff Act of March 3, 1883, as follows: “216.

<p>Obimivat, Law — Bill or Paetioulaks — Dismissal—Kmbbzzlbmbnt.</p> <p>An indictment charging an ex-collector of customs with embezzlement being so indefinite that tile court was unable to understand whether it involved but a singlo transaction or a series oí peculations, the court orderod that a bill of particulars be Xurnished, and continued the case to allow time to prepare it. At~a subsequent term, upon the case being called lor trial, the district attorney declared his inability to furnish the bill of particulars, and moved to discontinue the cause. Held, that the statement of the district attorney was equivalent to an admission oí a lack oi evidence to sustain the charge, and, as the prosecution must fail, the motion was granted, notwithstanding the defendant’s protest and demand for a jury trial.</p> <p> (Syllabus by the Court.) </p>

I move to dismiss — discontinue—this bill of indictment. The amount charged in it to have been embezzled by the defendant Harned constitutes a part of the larger amount alleged to have been embezzled by the defendant Brooks in the case just disposed of. I have no testimony to proceed upon in one case more than another.

<p>UlTEBING COUNTERFEIT MONEY — WFIAT CONSTITUTES — CONFEDERATE MONEY,</p> <p>The putting off a note oí the late Confederate States of America as lawful money upon an ignorant man, in the night-time, is not the offense contemplated by Kev. St. U. S. | 5115, punishing the passing, uttering, or publishing of any note in imitation of the circulating notes “issued by the banking associations acting under the laws of the united States, ” and it is not indictable thereunder.</p>

<p>At Law.</p> <p>This was a motion in arrest of judgment after a verdict of guilty. The indictment was drawn under Rev. St. § 5392, and alleged that Robert Wood—</p> <p>“In a case then pending before the commissioner of pensions of the United States, being a special examination into the merits of the pension claim of one Edwin Brackett, who claimed to be entitled to a pension from the United States by reason, among other tilings, of the loss of the thumb of his left hand, and of injuries to his face, incurred on or about the second day of April in the year of our Lord one thousand eight hundred and sixty-five, while in the service of the United States, * * * did knowingly, willfully, maliciously, corruptly, feloniously, and contrary to said oath, state and subscribe certain matters and tilings material to said inquiry into the merits of said pension claim of said Edwin Brackett, and did swear, amongst other things,”</p> <p>—and so forth, setting out the alleged deposition, and falsifying the statements thereof, and concluding that the said statement “was false, and he, the said Robert Wood, then and there well knew the same to be false, all of which he, the said Robert Wood, then and there well knew, against the peace,” etc.</p> <p>The prisoner moved in arrest — First, because the indictment—</p> <p>"Did not specify with sufficient certainty that the Edwin Brackett named therein was the Edwin Brackett who, as a late member of Company E, 2d ft. I. Vols., made an application for a pension, and that his was the pension case in which the defendant is charged with making an untrue statement under oath.”</p> <p>And, secondly, because the indictment “did not specifically set forth that the defendant falsely and intentionally committed perjury in the premises.”</p>

<p> Habeas Corpus. </p>

<p>Patents tor Inventions — Suits for Infringement — .Expert Testimony.</p> <p>On a suit lor infringement of letters patent, where complainant calls an expert witness to point out resemblances between the patent and the alleged infringing device, and asks him to interpret the claims of the patent in so doing, he cannot be required to refrain from considering the prior state of the art in giving his testimony.</p>

Ill Equity. This suit is for the infringement of a patent for a rail for dash-boards, issued April 6, 1886, to Robert W. Logan, complainants’ assignor, being Mo. 339,307.

<p>Patents eof. Inventions — Novei/ty-Improvements in Spring-Beds.</p> <p>In view of the prior state of the art, as shown by various patents granted between January, 1870, and August, 1882, letters patent No. 270,453, granted January 9,1883, to James J. McCormack, for a device to strengthen the frame of spring-beds, consisting of a rod running through the center of such frame, and connecting the sections of which it is composed, is void for want of patentable novelty.</p>

<p>Patents nob Inventions — Cab-Buffers—Comity between Circuit Courts.</p> <p>In .Pullman Palace Car Co. v. Wagner Palace Car Co., 38 Fed, Rep. 416, letters patent No. 373,098, issued November 15, 1887, to the Pullman Company, as assignee of Henry H. Sessions, for an improvement in the connections between cars, was sustained by the circuit court for the northern district of Illinois, mainly on the ground that the buffer-plates of the two cars were kept in contact under constantly opposing spring pressure, while rounding curves as well as upon a straight track, thus to a large extent overcoming the tendency to oscillation. In that suit George M. Pullman filed an affidavit showing that the oscillation was in fact largely overcome by the device, even upon roads of greatest curvature. In Pullman Palace Car Co. v. Boston & A. R. B. Co., ante, 195, the subsequent patent, No. 403,137, issued Maj' 14,1889, to George M. Pullman, for a vestibule connection between cars, in combination with a device similar to that of the Sessions patent, and intended to accomplish the same purpose, and the drawings for whi„h were almost identically the same, was afterwards sustained by the circuit court for the district of Massachusetts upon the ground, among others, that it was not anticipated by the Sessions patent. In this suit Sessions gave testimony in behalf of the Pullman Company, limitating his invention to the exact device described by the specifications, and the Pullman Company contended for a construction thereof which would necessarily prevent the buffer-plates from being in contact under pressure while rounding curves. Meld, that the Massachusetts decision was inconsistent with the Illinois decision, and therefore comity did not require the Illinois court to enjoin an infringement of the Pullman patent on the strength of the Massachusetts decision.</p>

<p>In Admiralty. Libel in pemmam for pilotage fees.</p>

<p>Shipping — X.oss op Cargo — Pkrils op the Sioa — Overloading.</p> <p>The propeller S. stai-led on a voyage with a cargo of lumber, part of which was piled on deck to the height of 8 or 10 feet, which was fully equal to the depth of the hoid. A wind sprung up on her quarter, raising a sea that caused her to roll so heavily that she careened to port and hung there until the deck-load on that side slid oil, when she righted and rolled to starboard until the lumber on that side went overboard, leaving only that piled amidships. She then righted and- rode easier, and came safely to port. It was shown that the wind in question was only a 13 or 15 mile breeze, and not a gale. Held, that the loss was not due to stress of weather, but to overloading-, and the vessel is liable therefor.</p>

<p>Cohesion—Ovektakino Vessel—Unexpected Siieee—Tide-Rip—Wind.</p> <p>As libelant’s schooner T. was going west through the East river undor sail, she was overtaken near Negro Point by a schooner in tow oí a tug on a hawser Some 350 Xeet long. About the place oí collision the T. passed out oí slack water into a strong flood-tide, and, the wind at the same time failing, she was swung around by the tide some lour to six points, and out into the stream, when she struck the other schooner. When the tug passed the T., the two vessels wore on parallel courses, and about 200 feet apart. Meld that, under the circumstances, the pilot of the tug could not expect such a large swing on the part oí the T., and, as there was no fault in his course, and no indication of danger when he passed the T., the tug could not be held in fault for the collision.</p>

<p>1. COLUSION — Tl'GP WITH TOWS — BROKEN BABT IN B.TVEB.</p> <p>The steamer N. was proceeding down the St. Clair river, having in tow a raft of telegrajili poles, some 800 foot long and 400 foot wide, property constructed for navigation in such river, when two schooners collided with the raft and so broke it up that it spread out to the width of nearly (500 feet, and in some places occupied the whole of the channel. The N., however, went her way without attempting to repair the raft, and in the night-time siie sighted the 1 tig B. with a tow, just below South-East bend. The master of the XT. looked back on his starboard side, and saw what he called “a hole” between the raft and the bank, and ho thereupon gave two blasts oí the whistle for the B. to pass to starboard, which she proceeded to do a flor answering. .Before the B. could do anything to prevent collision, after discovering the character of t he ral't, it struck one of the schooners of the B.’s tow, and damaged her. Held, that the N. was in fault because her master did not acquaint, himself with the dangerous character of the raft and give the danger signal to the B., or hold the raft for repairs at some place where other vessels might pass safely.</p> <p>2. Same — Notice to Passing V essee.</p> <p>The fact that vessels going down the river had warned the B. that there was such a dangerous raft in the river before she met it was not sufficient notice to require her to disregard the XT.’s invitation to pass, where such vessels had not described the raft in question so as to enable the B. to distinguish it from any other she might encounter.</p>

<p>1. Collision — Sailing Vessels Approaching End On.</p> <p>About ! o’clock of a cleat- morning, on Lake Michigan, tho schooner L., close-hauled on the starboard tack and headed S. W., sighted and -was seen by the schooner AL, headed N. by W., with the wind free. The M. put her helm hard-a-port, and let go her main sheet, and swung six or seven points to starboard. When the vessels were five or six lengths apart, tho L. starboarded and swung to port, until she was across tho bows of the M., which struck her forward of the fore rigging. Held that, whether tho vessels were approaching end on or on converging lines, the L. should not have starboarded, and the collision is chargeable to ’her fault. '</p> <p>2. Samu — IxstriwreiMT Lookout.</p> <p>It was negligence to allow the wheelsman of the L. to go below after the M. was sighted, and to send her lookout to the wheel, leaving the captain, the only other man on deck, to perform the double duty of officer of the deck and lookout.</p>

<p>1. Collision — Fog—Teas with Tows at Anohob — Signals.</p> <p>The tug Tí., with a tow, anchored in mid-stream in tins Hudson river on account of log, about 2 o’clock in the morning. The tow of canal-boats stretched abaft the tug about 800 or 1,000 feet in the channel. The N. sounded the required fog-signals, but no others were sounded, though the J3., another tug, which was theN.’s helper, was stationed about, the middle of the tow. Shortly after coming to anchor, a steamer coming down the river ran into and sank one of the canal-boats. Held that the N., as principal, was in favjlt in not requiring fog. signals to be sounded on the Ifl.,her helper, which would have enabled passing vessels to locate the tow.</p> <p>2. Samis — Excessive Speed.</p> <p>The steamer was likewise in fault, as she was steaming from four to live knots, which was an excessive speed in the fog in question, through which vessels could not be seen at a greater distance than 50 feet.</p> <p>3. Same — Canal-Boat at Anchob — Signals.</p> <p>The canal-boat which was sunk, being the outside boat of the first tier of the flotilla, was likewise in fault for not sounding any signals, under the statute which prescribes that “canal-boats which shall be anchored or moored in * , * '* the channel of any * * * river * * x shall sound a fog-horn or equivalent signal. ” .;</p>

<p>.Hemovat, oí Causes — Application—Amendment.</p> <p>Whore an application to remove a cause to a federal court, on the ground of local prejudice, has been denied, a motion, made several months later, to amend the petition so as to set up another ground for the removal, is too late, and will be refused.</p>

At Law. Petition for leave to examine court records. The following motion was filed on the 6th day of December, 1890: "In the Circuit Court of the United States in Nebraska.

<p>Testimony Taken by Commission — Publication.</p> <p>Where complainant’s testimony has all been taken by commission, the evidence will be published before defendant opens his case, with proper precautions that he does not deprive complainant of any advantage he may enjoy by reason of defendant’s laches, so that defendant may know whether or not complainant has made out his whole case in chief.</p>

<p>jtaJTOTCTioir — Literary Property — Names oe Books.</p> <p>Injunction will not lie to restrain the publication and sale of a cyclopedia of the same name as one published by complainants, and of the same contents, except as to certain copyrighted articles, when defendants have not infringed any copyright, and use no means to persuade the public that their publication is that of complainants.</p>

<p>X. Action por Wrongfui, Death — Heirs—Pleading.</p> <p>In an action by a mother for the death of her sons caused by defendant’s negligence, under the Colorado statute, allowing such an action to the heirs of a deceased person, it is sufficient to allege that plaintiff is the sole heir of the decedents, without further averring' that they wore unmarried and childless.</p> <p>3. Save — Dependence op Plaintiff.</p> <p>It is not essential to the right to maintain such action that plaintiff should have been dependent on decedents for her support.</p>

<p>Customs Duties — Fraudulent Importation — Liability oe Vessel.</p> <p>■Where a vessel employed as a common carrier was seized to enforce a lien for a penalty under section 3088, Rev. St., there being probable cause for the seizure, but no charge of wrong-doing against the owner, heh' that, in the absence of rebutting evidence, proof that packages supposed to contain the contraband goods were received, transported, and delivered as freight in due course of business, and that the master had no knowledge with reference thereto, makes a sufficient case for the claimant, and the vessel must be released.</p> <p> (Syllabus by the Court.) </p>

<p>Customs Duties — Ebaubuleiit Impoktations — Evidence—Foeeeituke.</p> <p>In a suit to condemn merchandise as forfeited under section 3082, Rev. St., for having been fraudulently imported, where the proofs on the trial show probable cause for the seizure, and the claimant makes no offer to explain damaging circumstances, and show when, where, how, or from whom he acquired the ownership he claims, such withholding of evidence is a circumstance sufficient to complete the case for the government, under section 909, Rev. St.</p> <p> (Syllabus by the Com-t.) </p>

<p>Indictment for Perjury.</p>

<p>Post-Office — Robbeby from Mails — Decoy Packages.</p> <p>A postal-oar employe who takes from the mail under his charge a package containing things of value, although placed in the mail as decoy, and addressed to a person having no existence, is punishable under Rev. St. IT. S. §§ 3891, 5467, denouncing a penalty against any postal employe who takes any letter or packet “intrusted to him, * * * and which was intended to he conveyed by mail. * * *” Following XT. S. v. Wight, 3S Fed. Rep. 106; TT. S. v. Dorsey, 40 Fed. Rep. 752; and 77, S. v. Whittier, 5 Dill. 35. Refusing .to follow XT. S. v. Demiclte, 35 Fed. Rep. 407, and XT. S. v. Matthews, 35 Fed. Rep. 890.</p>

<p>Maritime Liens — Damage for Torts.</p> <p>A person injured by t,he negligence of the master and owners, while employed in loading coal upon a foreign vessel as a supply, has a lien upon the vessel for his damages.</p>

<p>I.n Admiralty.</p>

<p>1. Admikamtt—Stifciation foe Vauue—Bond to Makstiae—Notice.</p> <p>A bond to the marshal, under the act of 1847, unlike a stipulation for the value of the vessel, does not necessarily afford security to other creditors than the libelant in the particular suit. When such ¡)ond is given, and no legal notice to creditors is published, quwre whether the doctrine of quasi parties or privies, as to a suit in rent, could be applied to persons other than the actual parties to the record.</p> <p>8. Same—Laches—Suit Babked.</p> <p>Where insurers had full notice of a suit to determine the liability of a vessel for a collision, and were virtually represented In it, and abstained from formally joining in the litigation for nearly six years, and until a decision had heen reaohed on appeal, held, that such abstention from joining in the litigation should debar the insurers from any right to revive the same litigation de novo.</p>

<p>In Admiralty. Suits for damages occasioned to libelants’ vessels by displacement swells of the steamer Monmouth.</p>

<p>1. Cohesion—Negligence—Damage ekom Steamek’s Swells.</p> <p>A steamer which passes other boats at high speed, so near as to damage them bv her displacement waves, is liable i'or such damage. See The Monmouth, ante, 8Ó9.</p> <p>2. Same—Towage—Dun oe Tow on Appboacui op Steameb.</p> <p>Where the pilot of a tug in charge of a tow sees a large vessel rapidly approaching. and knows her displacement waves are dangerous, it is his duty to turn the tow so as to take the waves end on, and, failing to do so, the tug will also be held in fault.</p>

<p>Collision— Steam and Saii. — Crossing Bows — Flash Light — Mutual Fault.</p> <p>The steam-tug Stranger, shoving one canal-boat ahead of her, and having others lashed along-side, in going up the North river, when little above Stony Point, came in1o collision in the night-time with the schooner E. coming straight down. At the time of collision, she had swung so as to head nearly straight across the river, to the eastward. Held, upon conflicting evidence. (1) that the tug was previously to the westward of the line of the schooner’s course, and improperly attempted to cross her bows: (3) that if, as alleged, the E.’s green light was obscured, the night was not so dark as to prevent seeing the schooner, at least a quarter of a mile distant; (8) that the E. was in fault for not exhibiting a flash or torch light, and that this was material. The damages and costs were divided.</p>

<p>ji. B nir.IIOAT) Grants-Constructive Fraud — Limitation of Actions.</p> <p>Where a railroad company has complied with an act oí congress granting land to the state of Minnesota for railroad purposes, and with the state law transferring the grant to it. a transfer hy tho state to another company is a constructive fraud, as the lauds are held by the state in trust for the former company; and an action to recover such lands is not governed by Gen. St. Minn. c. «6, tit. 3, § 6, subd. 7, which specifies the period of limitation for “actions to enforce a trust or compel an accounting, ” but by subd. (5, which relates to actions “for relief on the ground of fraud. ” and specifies that the cause of action shall not be deemed to have accrued until a discovery of the fraud.</p> <p>3. Same — Priority or Location.</p> <p>As between two land-grant, railroads, the definite legation of the line of road under a lator grant, if the road is finished, will carry all lands within the place limits which have not then been selected as indemnity lands under an earlier grant.</p> <p>Affirming 33 J?od..JEtop. 831.</p>

<p>witness Fees — Attendance in Another District.</p> <p>Witness foes in civil cases are not, to be taxed for travel over any greater distance than a subpoena would run, and lienee, where a witness resident in one district attends to have his deposition taken in another, he is not entitled to fees for travel be Lore he reached the latter district.</p>

On Motion for New Trial. This was an action of ejectment, in which the trial court directed a verdict for plaintiff. For opinion on second trial of the case, see ante, 587.

<p>1. Actions against Partnership — Burden op Proof.</p> <p>Where suit is brought against defendants as members of a partnership, and one of them denies his connection with the firm, the burden is on plaintiff to show that he is a partner.</p> <p>2. CONVERSION BY BROKERS — POOLING.</p> <p>The act of factors in putting into a pool tobacco which has been consigned to them for sale on commission is not a conversion of the property where the consignors are at liberty to withdraw the tobacco from the pool, but acquiesce.in the factors’ action when it is brought to their knowledge.</p> <p>3. Samis — Constructive Conversion — Waives.</p> <p>A constructive conversion by factors of property consigned to them for sale on commission is waived by the action of the consignors in treating the property as still their own, as by letters expressing their gratification at certain sales made by the factors.</p> <p>4. Factors and Brokers — Authority—Advances.</p> <p>Whore factors have made advances on property consigned to thorn for sale on commission, such property is thereby removed from the absolute control of the consignor, and the factors are invested with a discretion to deal with it so as to indemnify themselves first,, provided that such dealing is in good faith as respects the ini erosl of the consignor.</p> <p>5. Samii — Negi.igence—Evil)isnce.</p> <p>Whore the market for such goods is composed of a single buyer, in order to charge the factors with negligence in not selling it must bo shown that this buyer made them a reasonable offer for the goods, sufficient to cover their advances thereon, and that they refused it.</p> <p>(>. Account Stated — Advances—Factors.</p> <p>Where factors transmitió their consignors accounts current sb owing the amount of advances made on goods received, and the consignors fail to point out errors therein within a reasonable time, their silence is an assent to the correctness oí such accounts.</p>

<p>1. Master and Servant — Duties of the Master.</p> <p>The employer owes to the employe to use ordinary care to select and retain competent co-employes, and not to subject the employe to the negligence of incompetent icilow-workmen; also, to exercise ordinary care to furnish a reasonably safe place for the employe to do his work in; also, to use ordinary care to discover any defect in the structure upon which the employe was required to go in performing his work.</p> <p>2. Same — Ordinary Care.</p> <p>Ordinary care is that amount of care which an ordinarily prudent person, would exercise under the same circumstances, and which ought reasonably to he observed, taking into consideration all the exigencies of the particular service.</p> <p>3. Same — Who are Fellow-Servants.</p> <p>Fellow-workmen are in a common employment when each of them is employed in a service or work of such a kind that all the others, in the exercise of ordinary sagacity, ought to he able to foresee, when accepting employment, that it'may probably expose them to the risk of injury in ease he is negligent.</p> <p>4. Same — Who is Yioe-Prinoipal.</p> <p>A foreman of a gang, vested with the control and supervision of a particular work to be done, and with powers to say not only what shall he done, but how it shall be done, and who has full power and authority to command the men under him in their work, and when the work is under his practical direction and control, save and except as he may receive directions from time to time from his employer, and ordinarily there is no one else present authorized to superintend and direct the work of the men, represents the employer, and is Ms vice-principal, and for his negligence the employer is responsible.</p>

<p>1. Sale — Rescission.</p> <p>Where a seller of personal property, by a contract which provides that the title shall .remain in him until payment of the price, has received in part payment other goods, he cannot, on refusal’of the purchaser to pay the balance, maintain replevin for the goods sold, without first returning the goods received in part payment.</p> <p>3. Same — Replevin—Pleading.</p> <p>In such an action defendant cannot allege counter-claims for damage for plaintiff's failure to perform the contract of sale.</p>

<p>Indictment for Perjury.</p>

<p>ClIAU.HN'OES IX CKIMISAL CASKS.</p> <p>The act of congress of June, 1872, as embodied in section 819 of the Revised Statutes, restricts parties indicted for felony to 20 peremptory challenges; and, where several parties are indicted for a joint felony, they are deemed a single party for the purposes of all challenges under that section.</p> <p>(Syllabus by the Court.)</p>

<p>At Law. Indictment for conspiracy and murder.</p>

<p>1. Conspiraov — What Constitutes.</p> <p>A conspiracy is an unlawful confederacy or combination of two or more' persons to do an unlawful act, or have accomplisfied an unlawful purpose. The offense is complete when the unlawful conspiracy, combination, or agreement is made, and a criminal act done in pursuance of the conspiracy is not necessary to justify a conviction for the crime of conspiracy itself.</p> <p>8. Same — Evidence—Declarations.</p> <p>Where several persons are proved to have combined together for the same illegal purpose, any act done by one, of the parties in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act of tfie whole party, and the proof of such act will be evidence against any of the others who engaged in the same conspiracy. Declarations of a eo-conspii'-ator, made during tfie pendency of the illegal enterprise, is not only evidence against himself, but is evidence against his associates in the crime.</p> <p>3. Same — Federal Jurisdiction.</p> <p>An unlawful combination to inj are, oppress, threaten, and intimidate a citizen of the united States in the free exercise of a right and privilege secured to him by the constitution and laws of the United States, and because of his having so exercised the same, is a conspiracy, indictable and punishable under section 5508 of the Revised Statutes. Where a citizen of the United States is interested in a decree of a circuit court of the United States, and where it has become necessary for him to sue out attachments for contempt to enforce respect for said decree, and obedience to the same, and to punish violations thereof, a conspiracy to injure, oppress, threaten, and intimidate him because of the exercise of his right to apply for such relief is a violation of the statute.</p> <p>4. Homicide — Jurisdiction.</p> <p>If, in pursuance of the conspiracy above defined, the conspirators murder the agent of the party against whom the conspiracy is directed, they are indictable and punishable under section 5509 of the Revised Statutes, as such crime is punished by the laws of the state in which the murder was committed.</p> <p>5. Conspiracy — Sufficiency op Evidence.</p> <p>The evidence necessary to support the charge of conspiracy discussed.</p> <p>6. Same.</p> <p>If it appear that a particular motive for the conspiracy is alleged in the indictment, and the jury is justified from the evidence in finding that such motive did really exist, it will not matter if the conspirators had different motives additional to that the indictment describes.</p> <p>7. Trial — Instructions.</p> <p>It is the duty of the trial judge in a court of the United States to sum up the evidence for the assistance of the jury. This is not done to interfere with the province of the jury, for, notwithstanding the summary of the judge, they are obliged to find the facts for themselves.</p> <p>8. Impeachment op Witness.</p> <p>Where a witness is sought to be impeached by proof of contradictory statements in matters material to the issue, it must appear that the contradictory matter is material. The witness so attacked may be sustained by proof of general good character, and at last his credit is a question for the jury.</p> <p>9. Evidence op Co-Conspirators — Corroboration.</p> <p>Where three persons who are jointly charged with the conspiracy make disclosures with reference tfiereto, — one makes a voluntary confession, another is permitted to become a witness for the government, under an implied promise of pardon, and testifies, and the other makes a declaration during the pendency of the criminal enterprise, — and there could have been no collusion or knowledge inter sese with re foronce to the several statements, the fact that the throe statements are, in all material respects, identical, is confirmatory of the testimony of the accomplice, and of the credit of a witness who testifies to the declaration.</p> <p>10. Same.</p> <p>The confirmatory evidence need not extend to the whole testimony: but, it being- shown that the accomplice has testified truly in some particulars, the jury may infer that he has in others.</p> <p>11. Same.</p> <p>It is a settled rule of evidence that an accomplice, notwithstanding the turpitude of his conduct, is not on that account an incompetent witness, but the jury may, if they please, act upon the evidence of an accomplice. Tt is, as a matter of practice, the duty of the judge to advise them not to convict of felony upon such testimony alone, and without corroboration. No evidence can be legally competent and sufficient to corroborate an accomplice which docs not tend to confirm the testimony of the accomplice upon a point material to the issue in the sense that it tends to prove the guilt of the defendant. Com. v. Holmes, 127 Mass. 124, decided by Chief Justice (Thai.</p> <p>12. Same.</p> <p>Circumstances of corroboration in this case instanced.</p> <p>13. Conspiracy to Murder — Federal Jurisdiction.</p> <p>It is not within the power of the United States to punish for a conspiracy to murder within the state unless the murder was in violation of a United States statute. In this case the question of the power of the United States to inquire into and punish for the alleged murder of Forsyth depends upon whether the killing was done in pursuance of the conspiracy alleged in the indictment.</p> <p>11. Same — Evidence Required.</p> <p>Tt requires more than proof of mere passive cognizance on the part of a prisoner of a crime to sustain a charge of conspiracy, but the jury must find that such prisoner did some act or made some agreement showing an intention to participate in some way in such conspiracy.</p> <p>15. Criminal Lviv — Evidence oe Character.</p> <p>Effect of proof of good character discussed. XT. 8. v. Jackson, 29 Fed. Rep. 508, followed.</p> <p>16. Same.</p> <p>Because a prisoner may not choose to put his character in issue he is not to be prej-lidieed in the minds of the jury thereby.</p> <p>17. Trial — Akoilmexts oe Counsel.</p> <p>Reference in argument by counsel to impertinent topics commented on.</p> <p> (Syllabus by the Court.) </p>

<p>Collision — In Narrow Channel — Suction—Tow under Sail.</p> <p>í The steamer Devereaux and the steamer Folsom, with the schooners Mitchell and Nelson in tow, were passing to the starboard of each other in a narrow channel, where it was necessary that they should proceed slowly and cautiously. The force of .suction gave the . Devereaux' a .sheer to starboard, and across the course of the Mitchell, just as the Devereaux’s bow passed the stern of the Folsom, whereupon her helm was nut hard a-starboard, and her speed increased, to swing hor to her course, and the maneuver was partially successful, but the Mitchell took a sheer to starboard just at this time, and the Devereaux struck her on- the port bow. The speed of the Folsom and her tow was at least seven miles an hour, and both the schooners in tow had all sail set, with an eight to thirteen mile breeze on the quarter. Meld, that the collision was caused by the negligence of the Folsom in running at an excessive speed, and with her tow under sail, and to that of the Mitchell in not anticipating the result of suction on the Devereaux, and in not swinging to port to avoid her.</p>

<p>Collision — Between Steamers — River Bend — Signals.</p> <p>Two steam-boats, the M. and the L., collided át a hend of the river, having sighted each other for the fir.st time when they were'100 yards apart. The master, pilot, and two of the crew of the M. testified that she sounded a long blast of her whistle when half a mile from the bend, as required by rule 5 of the board of supervising inspectors. The master, pilot, engineer, and five of the crew of the L. testified that it was their boat that sounded the bend signal. Two disinterested witnesses, who were standing on a wharf, waiting for the L., testified that they knew the whistles of the two’ steamers; that they heard the signals given at the time of the collision; and that immediately before it they heard the L. give the bend signal, bqt none was given by the M. The engineer of the M. testified that he did not remember any bend signal from his boat. Meld, that the M. was in fault.</p>

<p>1. Collision—Poo—A noiioked Vessel.</p> <p>Where a ferry-boat, in a dense fog, ran into a bark, which was anchored within the prescribed limits of the anchorage ground in the bay of New York, and whose position was well known to the pilot of the ferry-boat, held, that the ferry-boat should have kept off the anchorage ground entirely, as she could have done, and that the ferry-boat was therefore in fault for the collision.</p> <p>2. Same—Fog-Bells—Fkequencst—Inspeotoks’ Rule—Lookout—Change op Watch.</p> <p>As hark, lying at anchor in a fog so dense that objects could not be distinguished 50 feet distant, and in a position where boats were obliged frequently to pass near her, rang her fog bells every three or four minutes. Held, that in such situation there was a necessity for more frequent bolls than are prescribed by the international regulations, which require the bell to be rung only once every five minutes. No whistle was noticed bythoseon the bark, though the ferry-boat while approaching whistled every half minute. Held, that the bark was also in fault for not ringing the bell as often as required by the inspectors’ rules, and for bad lookout at the time of a change in the watch.</p>

<p>Shipping—Personal Injury—Stevedore—Fellow-Servants—Efficient Cause.</p> <p>As libelant was loading iron in the hold of a steam-ship, a skid, in ascending to the deck, caught under one of the coamings of a hatch, and the knot in one corner of Ihe skid pulled out, causing the iron on the skid to fall upon the libelant. The evidence showed no defect in the skid, or the ropes or the lanyard; that the efficient cause of the accident was the negligence of the guy-tender or of the engineer, in allowing the skid to catch and in not stopping the engine. Held, that they were fellow-servants with libelant, and that the only obligation of the ship was to see that the instruments used were reasonably sound and fit for the service, and libel-ant could not charge the ship for the accident resulting from the negligence of fellow-servants.</p>