Volume 45 — Federal Reporter

On Motion for Preliminary Injunction. Rill by the Automatic Phonograph Exhibition Company to enjoin the North American Phonograph Company from compelling its various sub-companies to sell phonographs to the public. The North American Phonograph Company owns various patents for phonographs.

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

<p>Nayigaisuh Watijk — Bridge—Injunction.</p> <p>Where a railroad company is authorized by its charier (Act La. 1876, No. 14, p. 81, § 7, subd. 6) to erect a bridge over any river, provided that it does not unnecessarily impair the usefulness of the river to the public, but is required to construct a draw in any bridge over a navigable stream, an Injunction will not be granted to prohibit a water transportation company from taking its tow-boats through the draw at high water with more than two barges in tow, in the absence of moro specific legislative authority, unless it first be made to appear in proceedings at law, where tho defendant can have a trial by jury, that the bridge with its draw as now constructed does not “unnecessarily impair” the public convenience of the river.</p>

<p>In Equity.</p> <p>This is a creditors’ bill on tho part of the complainants and other creditors who may come in to sot aside a deed of trust made by the Kansas City Varnish Company, a business corporation, preferring as creditors the German National Bank for $16,255, Harkuoss, Wyman & Russell, bankers, for 85,500, and tho Kaw Valley Paint & Lead Company for $974.50. Tho deed of trust was executed August 25,1890. The caso, on preliminary hearing for writ of injunction and tho appointment of a receiver, is reported in 48 Fed. Rep. 204. It has now been hoard on the pleadings and full evidence. Tho principal facts will appear from the opinion of the court.</p>

In Equity. On final hearing. The facts in this cause, so far as the same are necessary to an understanding of the subjoined opinion, are as follows: The defendant the Michigan Dairy Company derived its title to’the lands involved in this proceeding from the defendant David P. Clay; a portion of such lands having been conveyed to the dairy company in the year 1884, and the remainder on the 13th day of September, 1886.

<p>New Tiitat. — Verdict—Weight ov Evidence — KegI/Igkstce.</p> <p>Under Const. U. S. Amend, art. 7, and Rev. St. § 649, which provide that no fact tried by a jury shall bo re-examined otherwise than according to the rules of the common law, a verdict for defendant, in an action against a street railway company for personal injuries, will not bo set aside where the evidence as to defendant’s negligenco is conflicting.</p>

At Law. This is an action at law in which a controversy has arisen between the plaintiffs and persons who have been allowed to interplead and set up title to a fund brought into the custody of the court by attachment proceedings instituted by the plaintiffs.

<p>At Law. Action to recover back duties.</p> <p>The plaintiff in March, 1889, imported from Antwerp into the port of Boston,, certain pincers, scythes, and grass hooks, which were classified for duty under the last clause of Schedule C of the tariff act of March 3, 1883, (22 U. S. St. 501,) which provides for “manufactures, articles, or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, * * * or any other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem.'''1 And the duty in accordance with this provision of 45 per cent, ad valorem was exacted of the plaintiff by the defendant as collector of customs at the port of Boston. Against this classification and exaction the plaintiff protested, and in due time brought suit, contending that these articles were dutiable at 21 cents a pound, instead of 45 percent. ad valorem, under the provision of Schedule C, (22 U. S. St. p. 498,) for “forgings of iron and steel, or forged iron, of whatever shape or in whatever stage of manufacture, not specially enumerated or provided for in this act, two and one-half cents per pound.”</p>

<p>At Law. Indictment for using the mails to defraud.</p>

<p>1. Contract for Aijbh Labor.</p> <p>The offense described in sections 1 and 3 of the act of February 26,1885, (33 U. S. St. 332,) consists in prepaying, or otherwise assisting or encouraging the importation or migration of an alien, knowing such alien to be at the time under contract to perform labor or service in the United States. Following ZT. S. v. Craig, 28 Fed. Rep. 799.</p> <p>2. Same — Meaning of Words “Contract” or “Agreement.”</p> <p>The words “contract” or “agreement, ” used in the statute, mean an enforceable contract, express or implied.</p> <p>3. Same — Contract—Evidence of.</p> <p>. A letter was written by an alien in England to a person in the United States, saj-ing that the writer had heard that the party addressed was in want of men to do a certain kind of work, and, if convenient to send passes, himself and another alien would “ come out, ” but contained no express promise to do work in consideration of receiving passes. To this letter a third party, to whom the same was handed, replied: “I have this day bought two tickets for you; * * * take this letter to R. S. & Co., * * * and get tickets. * * * We can give you steady work. * * * Tickets will not be good after July 18th. ” The letters being the only evidence of a contract to perform labor or service in the United States, existing when the transportation was prepaid, held, that they wore insufficient to establish a contract existing at that date.</p>

On Demurrer and Motion to Quash. In 1887 the defendant was president of the First National Bank of Auburn, N. Y. At the September term of this court lie was indicted lor making false entries in a report purporting to give a statement of the condition of said bank, at the close of business on the 7th day of December, L887.

<p>1. Patents for Inventions-Action at Law — Damages.</p> <p>In an action at law Xor infringement, actual damages only are recoverable; and although evidence is receivable in such action of profits realized by the infringer, yet the amount of such profits cannot be taken as the measure of damage, unless other evidence is offered from which it may fairly bo inferred that, but for the infringement, the patentee would have realized tho profits shown to have been realized by the infringer.</p> <p>2. Same — Inferences—Evidence—Nominal Damages.</p> <p>Where the evidence showed that the article made by the defendant by the aid of the patented device was different from that made by the patentee, and was produced by a different process, and was also of a superior quality and finish, held, that the court would not infer that the patentee had lost as much as tho infringer had gained by the use of tho invention; and held, further, that, in the absence of any reliable evidence showing what portion of tho profits made by the infringer would have been realized by the patentee but for the infringement, tho damages of the latter must be assessed at a nominal sum.</p> <p>3. Same — Market Value of Use— Royalties — License Pees.</p> <p>The market value of the uso o f an invention can only be taken as tho measure oi damage in those cases whore the patentee has established such market value by granting the use of the invention to the public for proscribed royalties or license fees.</p>

In Equity. After the former hearing (see 44 Fed. Rep. 294) the following additional memorandum was filed by Lacombe, J.; “The documents called for by the subpoenas have now been brought into court. In excuse for not delivering them to the examiner it was urged that some further objection to their presentation in evidence is to be made, which counsel thought should be made not before the examiner, who sits without power to rule upon objections, but before the court.

<p>Collision — Crossing Courses — Ferry-Boat and Tug — Entering Slip.</p> <p>The steam-tug Garrett was lying at pier 4, East river, head up stream, and inside of another tug. Receiving orders for Harlem, she backed down stream to get around the stern of the tug lying along-side. At this time, the ferry-boat West Brooklyn was approaching her slip between piers 2 and 3. She blew two whistles to the tug, and kept on, supposing that the tug would go ahead in time to avoid her. •Through some carelessness on the part of the tug. she did not go ahead, and her stern struck the paddle-wheel of the ferry-boat after the latter was half-way in her slip and when t.ho wheel was motionless. HeW, that the tug was solely in fault for the collision.</p>

<p>1. Torch-Light on Sailing Vessel.</p> <p>Section 4234, Rev. St, requiring sailing vessels to exhibit a torch-light on the approach of a steam-vessel at night, does not apply to foreign vessels in American waters; but good seamanship requires that such sail-vessels shall exhibit such light under such circumstances, whether in motion or at anchor, and a failure to do so in case of a collision may constitute contributory negligence on her part.</p> <p>2. Intervention in Admiralty.</p> <p>Any person may intervene in a suit in admiralty i/n rem for his interest, and he may do so notwithstanding the res has been delivered to a claimant on a stipulation in a certain sum to abide and perform the decree; the stipulation, as far as it goes, standing for the res.</p> <p>3. Suit in Admiralty for the Death of a Human Being.</p> <p>Under the statute of Oregon (§§ 371, 3690, Comp. 1887) giving a right of action to an administrator for the death of his intestate, and giving a lien on a vessel navigating the waters of the state, for any injury caused thereby, a suit in admiralty may be maintained in the United States district court for such death.</p> <p>4. Division of Damages where Both Vessels are in Fault.</p> <p>In such case the rule is to deduct the lesser loss from the greater, and to require the vessel sustaining the lesser to pay one-half of the remainder to the vessel sustaining the greater loss.</p>

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

<p>Removal of Causes — Timely Application — Remand.</p> <p>Whore a petition lor removal is not filed at the time or before defendant is required by the state practice to plead to the declaration or complaint, as provided in Act Cong. March 8, 1875, (25 St. at Large, p. 435, § 8,) the case must be remanded to the state court, whether motion to that effect bo made or not.</p>

<p>Removal oe Causes — Jurisdiction—Railroad Commission.</p> <p>A suit brought by the state railroad commissioners to compel a railway company to obey the regulations of the commissioners cannot be removed to the federal courts, even though the parties are citizens of different states, and the answer raises a federal question, since such a suit, being in effect an attempt by the state to execute its laws, could not have been originally brought in a federal court.</p>

At Law. The act of congress of August 13, 1888, (25 St. 434,) provides that “the circuit courts of the United States shall have original cognizances * * of all suits of a civil nature at common law or in equity where the matter in suit exceeds, exclusive of interest and costs, the sum or value of $2,000,” etc.

<p>In Equity. Sur demurrer to declaration.</p>

<p>Rule to Show Cause why a Receiver be not Appointed.</p>

In Equity. The bill is filed for the specific performance of a contract, of which the following is a copy: “Gallipolis, October 2, 1889. “It is hereby agreed and understood by and between Julius E. Pitrat, of Gallipolis, Ohio, and liobert E. Hull, of Detroit, Michigan: First, that Julius E. Pitrat agrees to soli, and does hereby sell, patent Ho. 814,717, dated March 31, 1885; patent Ho. 341,166, dated May 4, 1886; patent Ho. 344,875, dated July 6, 1886; patent Ho. 356,077,…

<p>1. SnimciE oe Process — Evidence.</p> <p>An affidavit by a deputy-marshal, indorsed on an original writ oí personal service thereof on the defendant, prevails over the defendant’s denial that the writ was ever served, where the occurrence took place 18 years before.</p> <p>Actions on Judgments — Res Adjodicata.</p> <p>In an action on a judgment, where the order for judgment recites that “this writ having been personally served on the defendant, and” no appearance having been entered, ” etc., defendant cannot contend that she had no notice of the original suit, and that the bond on which it was brought against her as surety was void as to her because of her coverture at the time she executed it.</p>

<p>Ejectment — Limitation on Action — Adverse Possession.</p> <p>Since there is no statute oí Colorado on the subject of title by adverse occupation, and the common law as it stood in the fourth year of James I. has been adopted, (Gen. St. Colo. p. 170,) SI years’ adverse possession of land is no bar to ejectment by the holder of the fee-simple title.</p>

<p>District Attorney — Fees.</p> <p>■ Counsel fees allowed to a United States district attorney by the court cannot be' reduced by the attorney general.</p> <p>3. Same.</p> <p>A district attorney is not entitled to fees for obtaining warrants for the removal of prisoners arrested in one district and triable in another.</p> <p>3. Same.</p> <p>But he is entitled to a per diem for attendance before a commissioner to examine poor convicts applying for discharge, and for attendance before a commissioner on days when recognizances are taken, though no witnesses are examined.</p>

<p>Judgment — Revival—Partnership—Citation.</p> <p>Civil Code La. art. 8547, providing- lor reviving a judgment, prescribes that it may be done by having a citation issued “to the defendant or his representative, * * * and, if such defendant be absent, and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoc the citation shall be served.” Held, that a judgment rendered against a partnership and the members individually, in solido, cannot be revived against a member who lias since left the state, where the citation is to, and the appointment curator ad hoc for, the partnership only.</p>

<p>Indictment for Carrying on the Business of Retail Liquor Dealer without having Paid the Special Tax.</p>

<p>Iii Admiralty. Libel in personam for personal injuries.</p>

<p>Assault os Seamen — Liability oj? Masteb.</p> <p>A libel for personal Injuries by a seaman against the masler will be dismissed where it appears that the injuries consisted of striking libelant on the head with a broom -stick, causing Mm to have a stiff nock for several days; this being- done as a punishment, libelant and other seamen having boon suspected of stealing certain ship stores which were found in libelant’s bunk.</p>

<p>Salvage— Comeexsatiox.</p> <p>An iron steam-ship, valued at §285,000, struck upon a reef, and lay in an exposed situation, liable to grind on the boulders and increase her injuries. Libelant was employed by her owners to save her, and was instructed by them to employ assistance. " The salvors conducted operations with energy, and pulled the vessel off the reef and into port for repairs a week after she struck. Her repairs costs §35,000. Libelant’s equipment engaged in the service was worth about 825,000, and the equipment hired by him was worth about $80,000. One of libolant’s vessels struck on the reef, and had to be repaired for two days. The bill of tho employes of libel-ant at schedule rates was §13,525.50. At the same rates, libelant’s bill for his equipment, exclusive of his personal service, which consisted of supervision of the whole work, would be about §8,000. Held, that an award of §31,733.32 would not be reduced on appeal.</p>

<p>Collision — Between Steameks — Bule of the Stakboaed Hand — Mabgin foe Safety.</p> <p>The steamer G. C. was lying nearly stationary in the East river, 100 or 200 feet off pier 36, bow down stream, and holding herself against the strong flood-tide. The tug Cyclops, with a car-float on her starboard side, rounded in the river to land the float at pier 27. The tug’s witnesses stated that when she was some 100 or 200 feet from the steamer she backed strong. The master of the steamer, not knowing that she was backing, hailed her to go ahead, strong. The tug did so, but the ear-float nevertheless struck and broke the stem of the steamer. The situation and purpose-of the steamer were from the first manifest to the tug. The latter, by backing when out in the river, could have turned down stream, and kept away from the steamer. Meld, that the case was not to be decided upon the uncertain possibilities of the short interval before collision, but that the tug, being the principal moving vessel, and having the steamer on the starboard hand, was bound seasonably to keep out of the latter’s way by a sufficient margin for safety, and not to come into dangerous proximity to the steamer which was maneuvering near the dock; that the hail of the master of the steamer did not change the obligation of the tug; that his hail was an error in extremis; that the tug was solely responsible for the collision.</p>

<p>1. Collision — Between Steam-Vessels— Negligence — Lookout.</p> <p>A collision in the East river between a ferry-boat and a canal-boat towed by a tug was caused by the failure of the tug to heed the signals of the ferry-boat. The tug had no lookout, and its pilot, looking at the ferry-boat from a window, mistook its course. Held, that the collision was caused by the negligence of the tug in having no lookout.</p> <p>3. Navigable Waters — State Regulation.</p> <p>In the absence of any regulation on the subject by congress, the New York law providing that the East river betweon the Battery and Blackwell’s island shall be navigated as nearly as possible in the middle of the stream is valid.</p> <p>3. Collision — Negligence—Violation of Law.</p> <p>Where a collision occurs because one of the vessels is violating said law, such vessel is responsible for the accident.</p>

<p>Contempt — Violation op Injunction — Evidence.</p> <p>In proceedings ior contempt for the alleged violation of a decree enjoining defendants from discharging into a certain stream any of the tailings, débris, or refuse matter from certain mines, complainant’s witnesses testified that on a certain day defendants were conducting hydraulic mining operations; that the water used ran into a settling pool, and thence through a tunnel into the stream; that the water flowing into the settling pool was laden with débris', that the water in the tunnel, about 80 or 40 feet from its mouth, and two miles from the mines, was muddy; that witnesses heard large stones rolling along the bottom of the tunnel in the water. Defendant’s evidence showed that all the debris from its mines was run into the settling pool, where the coarse material was all deposited, the pool having a dam which was kept higher than the water in the pool, and only the water freed from the débris flowed into the tunnel. It was not shown that the water flowing out of the' settling pool was ever discolored, and it appeared that sand, gravel, rocks, and débris would find their way into the tunnel, irrespective of defendant’s mining operations, from other sources. Held, that defendant was not guilty.</p>

<p>.Specific Performance — Decree Pro Tanto.</p> <p>Plaintiff contracted to convoy a farm described as containing 900 acres, and agreed that it should contain as much as 850 acres. In the negotiation it was estimated that there were more than 200 acres oi bottom-land, worth 880 an acre. A survey disclosed that there were 635 acres in all, and only 66 acres oí bottom, leaving a deficiency oí 134 acres of the best land, amounting in value to two-fifths of the purchase price. Held, that a conveyance would not be a substantial compliance with the contract, and equity will not decree a specific performance pro tanto.</p>

In Equity. The complainant, proprietor and publisher of the Commonwealth, a daily and weekly newspaper published at Covington, Ky., sues to restrain the defendant, the Cincinnati Typographical Union JSTo. 3, which, the bill avers, is a corporation organized- under the laws of Ohio as a trades union or labor organization, composed of type-setters and printers, and the individual defendants, who, it is averred, are its officers and managing agents, from “boycotting” the…

<p>1. Corporation — Mortgage—Ultra Vires.</p> <p>Where the indebtedness that a corporation is authorized by its charter to contract is limited, the objection that a mortgage for a sum in excess of this amount is ultravires cannot be successfully urged by an unsecured creditor,, who became such after the mortgage was executed, and whose claim is open to the same objection.</p> <p>2. Same — Omission of Seal.</p> <p>Where a mortgage is given by a corporation to secure a bona fide debt, and in a proceeding by an unsecured creditor to set it aside its execution is admitted, and its validity asserted by the company and all the stockholders and officers thereof, the mere omission to attach the corporate seal will not have the effect to invalidate it.</p> <p>3. Same — Corporate Authority — Parol Evidence.</p> <p>Upon an issue as to whether the execution of a mortgage by the president and secretary of a corporation was authorized by its board of directors, in whom the control and management of its affairs was vested, parol evidence is admissible to prove the action of the board, when the record of the meeting fails to state it.</p> <p>4. Insolvency — Preference.</p> <p>A mortgage given for a bona fide debt by a creditor in failing circumstances, but containing no trust, secret or expressed, in favor of any one else, though in effect a preference, is not invalid under the Nebraska assignment laws.</p>

<p>In Equity. For former reports, see 38 Fed. Rep. 165, 40 Fed. Rep. 559, and 42 Fed. Rep. 609.</p>

At Law. Rev. St. U. S. § 914,'is as follows: “The practice, pleadings, and forms and inodes of proceeding in civil causes, other than equity and admiralty, in the circuit and district courts, shall conform as near as may he to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held.”

<p>1. Writs — Service on Corporation — Return.</p> <p>Under Rev. St. Ohio, § 5044, which provides that process against á railroad company may be served upon any regular ticket or freight agent thereof, a return that the summons was served upon a “ticket agent and general agent” of the defendant is defective in not showing that the person served was a “regular” ticket agent.</p> <p>2. Same — Amendment op Return.</p> <p>After a cause has been removed to a federal court, the sheriff cannot amend his return on the summons.</p> <p>8. Same — Waiver by Appearance — Removal op Causes.</p> <p>After a cause has been removed to a federal court on the application of the defendant, he cannot object to the service of the summons, since petitioning for removal amounts to a general appearance. Following Sayles v. Inswrance Co., 2 Curt. 212.</p>

At Law. This was a petition for the allowance of the claim of Henry Pitman for lees as clerk of the district and circuit courts for this district.

<p>1. Clerk of Court — Fees—Decision of Comptroller.</p> <p>Tb e disallowance by the first comptroller of the treasury of fees claimed by a clerk of the court is hot conclusive against the clerk on a petition by him for the recovery of such fees. Following Harmon v. XT. S., 48 Fed. Rep. 561.</p> <p>2. Same — Proper Charges against United States.</p> <p>The clerk is entitled to fees for entering orders of approval of clerk’s and district attorney’s and marshal’s and commissioner’s accounts, and filing papers with same, for swearing bailiffs, for filing venires and precepts to distribute, and other papers, and for taking acknowledgments of sureties on recognizances. ■</p>

<p>1. Banks — Payment on Foiíged Indobshment -Liability.</p> <p>A bank that has paid a check on a forged indorsement is not responsible therefor to the drawer where the person who "commitied the forgery was identified io the bank by one who believed him to bo the payee, and was in fact the person to whom the drawer had delivered the chock, and whom lie believed to bo the payee.</p> <p>2. Sajii. — Notice—Laches.</p> <p>The neglect of a drawer of a chock, for more than a month after discovering that it had been paid upon a forged indorsement, to notify the bank that it will hold it responsible therefor, releases the bank from liability, even though it had notice of the forgery as soon as the drawer had.</p>

<p>Interest-On Overdue Coupons — Following State Decision.</p> <p>Under the Illinois decisions, denying interest on the overdue interest coupons of railroad aid bonds, such interest is not recoverable in the federal courts.</p>

At Law. The firm of Ballin, Joseph & Co. imported by the City of Richmond, July 21, 1890, into the port of New York certain worsted cloths, composed entirely of worsted, which were returned by the appraisers on the invoice-as “woolen cloths” under 80 cents, and duty was thereupon assessed on said merchandise by the collector at the rate of 35 cents per pound and 35 per centum ad valorem, under the provisions of the tariff act of March 3, 1883, (Tariff Ind. par. 362,j and the…

At Law*. The firm of II. Eemnan, Rtcrnbach & Co. on October 7,1890, imported certain merchandise by the steamer Fulda into the port of Now York, which was returned by the appraiser of the port on the invoice as “colored cottons and manufactures of flax.” The collector of the port of New York assessed duty on this merchandise under the provisions of paragraphs 3-18 and 371 of the act of October 1, 1890, entitled “An act to reduce the revenue and equalize duties on imports,…

<p>1. Bridges — Obstructions to Navigation — Removal by Secretary oí War.</p> <p>A bridge having been built and maintained in accordance with the requirements of an act of congress, the secretary of war cannot declare it an obstruction to navigation, and require it to be changed, remodeled, or rebuilt, under the act of congress of August 11,1888, (25 U. S. St. at Large, p. 424, §§ 9,10,) providing that when he shall have reason to believe that any bridge is an obstruction to free navigation, or where there is difficulty in passing the draw-opening or raft-span, the secretary of war shall give notice requiring the bridge to be altered, so as to render navigation through or under it free, easy, and unobstructed, and that the owner of any such bridge shall be liable to a penalty for willfully failing to remove the bridge, or to cause the necessary alterations to be made.</p> <p>2. Same — Notice of Alterations Required.</p> <p>Assuming' that sections 9 and 10 are valid in any case, the notice given by the secretary of war must point out what alterations are required to be made; and a notice is not sufficient which requires the owners “to so alter said bridge as to render navigation through orunder it free, easy, and unobstructed, ” though the notice contains a recital that “the bridge was an obstruction to free navigation by reason of its location, which at stages of water permitting navigation over the Des Moines rapids renders difficult the passage of boats, rafts, etc., through its west draw rest pier. ”</p> <p>3. Statutes — Repeal—Release of Penalties.</p> <p>By the express provision of Rev. St. U. S. § 13, the repeal of a statute does not release any penalty, forfeiture, or liability incurred unless the repealing act so provides.</p>

<p>At Law. On application for habeas corpus.</p>

At Law. This was an indictment under 25 U. S. St. at Large, p. 765, § 15, in the following words: “That Oliver P. Sarle, of Warwick, in said district of Rhode Island, on, to-wit, the third day of July, in the year of our Lord one thousand eight hundred and ninety, at said Warwick, within said district of Rhode Island, being then and there a. person more than twenty years of age, and then and there belonging to a family, to-wit, the family of himself, said Oliver P. Sarle,…

<p>Postal Laws — Objectionable Matter on Wrapper.</p> <p>Act Cong. Sept. 26, 1888, prohibiting the mailing of matter on the outside cover or wrapper containing language “calculated by its terms * * * and obviously intended to reflect injuriously upon the character or conduct of, another, ” does not ' apply to a printed paper containing such language, which is not inclosed in a wrapper, but which is merely folded, and the postage stamps placed on the paper itself.</p>

At Law. Defendant was indicted for carrying on, through the mails, various schemes to defraud, in violation of section 5480, Rev. St. The indictment set forth three distinct schemes and offenses.

<p>1, Patent — Infringement—Preliminar r Injunction.</p> <p>In an action lor infringement,, brought only a few days before the expiration of the patent, it appeared that the invention was made and patented while the patentees were in the employment of defendant, though they soon afterwards left it; that defendant had, with plaintiffs’ knowledge and approval, used the invention prior to the issue of the patent, and such use had continued to the commencement of the suit, without any contract for compensation, though one of the patentee® had notified defendant’s president that, after he left its employment, defendant must pay for the use of the invention at the same rato that others paid. 1{eld, ' that theré was no ground for equitable interference to restrain such use for the few remaining days of the life of the patent by.preliminary injunction.</p> <p>3. Same — Suit bob Royalties — National Jurisdiction.</p> <p>The only ground of equitable jurisdiction being relief by injunction, and patent having expired before defendant was required to answer, so that no injunction could have been granted on final decree, the only remaining cause of action, being for royalties under an implied license for the use of the invention after the notice, is purely legal, and, in the absence of a proper showing as to citizenship, there is no element of national jurisdiction, and the suit must be dismissed.</p>

<p>Patents for Inventions — Infringement.</p> <p>Letters patent No. 183,716, granted October 24, 1876, to William Smith for an improved water-closet, consisting of combination claims, one element of which is two jets, are not infringed by a closet having only one jet.</p>

<p>Patents fob Inventions — Infringement—Anticipation.</p> <p>Letters patent No. 40t,iiI8, issued. April 1C, 1889, to David S. White, i'or an improiement in hoisting and loading machines, consistin'? of an elevated portable platform, built so as to allow a car to bo passed under it io receive tho contents of a pivoted receptacle, with a. hoisting apparatus on the platform adapted to raise tho material up and over the platform, and a receptacle on tho platform, fixed so as to receive the material elevated and emptied info the car, is not infringed ty a mar chine known as ‘‘(Jreon’H Hoisting Apparatus, ” which consists of a platform on wheels, elevated so as to allow a car to pass under it, and an inclined projecting boom, tip which a truck runs and a bucket is hoiked so that it may be emptied into a receptacle, since said Green's machine is feubslatitiaily/lho same as the G. W. Hunt elevator, which was in use before the patented machine was invented.</p>

<p>Patents foe Inventions — Infeingement—Damages.</p> <p>In a suit 1'or infringing a patent, it appeared that complainant’s patent was for an improvement only, and not for an entirely new machine. It also appearetrthat defendants sold another machine similar to the alleged infringement, and that after a while it ceased to be profitable to defendants to manufacture the infringing machine, and they discontinued it. Held, that it was necessary for complainant to apportion his damages and defendants’ profits between the patented and unpatented features of the infringing machine, and was entitled only to the damages attributable to the infringing features.</p>

<p>Shipping — Cn ahtek-Pakty — Agreement to Submit —Arbitration.</p> <p>A charter-party provided that any question arising between the owners or the master and charterers should bo referred to the arbitration committee of the Now Orleans Maritime Association, “or, at the master’s option, to two arbitrators,” chosen in a manner therein set forth. Held that, on the master’s refusal to elect as to arbitrators, no arbitration could be had; the only remedy for the charterers in such case being suit for damages for breach of agreement to submit, or suit unon their cause of action.</p>

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

<p>Service op Process — Corporations—Setting aside Decree.</p> <p>Where, at the time the subpoena was served, the bill failed to show jurisdiction of defendant corporation, and the marshal’s return shows service only on one B., who was separately named as a defendant, a decree pro oonfesso against the corporation will be set aside.</p>

<p>Costs — Copies op Records.</p> <p>Under Rev. St. U. S. § 983, which provides that “lawful fees for exemplifications and copies and papers necessarily obtained for use on trials ” may be taxed as costs, a successful party cannot tax as costs certified copies of the muniments of his title, since he must be presumed to have such papers in his possession; but he may fax as costs transcripts of suits on which he relies merely to defeat his adversary’s title.</p>

<p>Trade-Marks — Manufactures—Name of City.</p> <p>While an exclusive right or property in a trade-mark or trade-name need not be confined to a single person, yet a trade-mark cannot exist in the name of the city in which a thing is made by manufacturers in that city, for any one is at liberty to go to the city and manufacture, and falsely designating the article made as coming from that city is a fraud only. Affirming 44 Fed. Rep. 277.</p>

<p>1. United States Marshal — Fees—Pursuit of Fugitives.</p> <p>Where a marshal, according to the practice in his district as allowed by the government, pursues into another district fugitivos from justice, acts as witness in identifying the fugitives and making prima facie proof of their guilt, and arrests them as special deputy of the marshal of the other district, who relinquishes all claim for fees for such arrest, suchmarshal is entitled to compensation for his services in pursuing, arresting, and bringing back such fugitives, even though the practice of the department in that respect has changed since the services were rendered.</p> <p>2. Same--Mile age.</p> <p>Act Cong. Fob. 23, 1875, (18 St. 384,) which provides that no marshal shall be paid for travel not actually and necessarily performed, docs not prevent a marshal from recovering mileage on each writ served, even though several writs are served on different persons at the same time and place. Following Harmon v. U. S., 48 Fed. Itep. 560.</p> <p>3. Sami; — Per Diem — Legad Holiday.</p> <p>The fact that the 5th of «Jnly was generally celebrated as Independence day, the 4th falling on Sunday, does not disentitle a marshal to his per diem for attending court on that day, where the record shows that the court was open and transacted business.</p> <p>4. Same — Writs Issued before Marsh ad Qualified.</p> <p>Where writs issued before the marshal who served them qualified for office were turned over to him by his predecessor, under arrangement that he should have the fees therefor, and the writs are served by him after he qualifies, he is entitled to fees for such service.</p> <p>5. Same — Pek Djem — Double Charge.</p> <p>Neither a marshal nor his deputy is entitled to a per diem, for attendance before a commissioner on days for which he has received a per diem for attendance before the court.</p>

<p>J. CONTRACT WITH A COUNTY.</p> <p>A county can only contract with or by the authority of its court, and the same can only be shown or proved by an entry in the record of county business; but where a county court agreed with a contractor for certain modifications in the plan of a bridge then in course of construction, and that the latter should be compensated therefor, and the provision concerning such compensation was omitted from the entry in the record, the extra work and material involved in the modification being done and furnished by the contractor and accepted by the county, 1 he latter is liable to the former for the reasonable value thereof, the same as a natural person.</p> <p>Building County Bridges.</p> <p>Section 4140 of the Compilation of 1887 authorizes the county court, in its discretion, to construct and repair bridges within the county; and the only restraint on the exercise of this authority or discretion is found in section 4141 of said Compilation. which provides that a contract to construct a bridge must be let to the lowest bidder.</p> <p>3. Repairs and Alterations op County Bridges.</p> <p>Contracts for repairs of county bridges, when such repairs do not amount to a substantial reconstruction of the bridge, may be let by the county court privately; and modifications in the plan oí a bridge, in the course of construction, involving labor and material in excess of that, provided for in the origina) contract, may be let in like manner, so long as the same is done in good faith, and not with the intention to supersede the original contract to construct the bridge, with another one, not publicly let, or one that shall have that effect.</p>

<p>Tkeegraph Companies — Government Messages.</p> <p>Act Cong. 1862, (12 SI. at Large, 489,) granting land and bonds to defendant railway company, provided (section 6) that the company should construct and keep in repair a telegraph line, “and that the government should at all times have the preference in the use of the same, * * * at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service. ” Rev. St. U. S. § 5266, gave certain rights to defendant telegraph company, and provided that messages sent over its lines by the government should “have priority over all other business, at such rates as the postmaster general shall annually fix/” Afterwards defendants entered into an agreement for the joint operation of their telegraph lines. Tho telegraph operators along the line acted as agents for both tho railway and telegraph companies. Held, that where a government message, written on blanks of the telegraph company, was delivered to an operator for transmission, it was to bo paid for at the rates fixed by tho postmaster general for the entire distance, though they might have been transmil ted part of the way by the railroad telegraph at commercial rates, if the sender had required it.</p>

<p>1. Master and Servant — Injuries to Convict Employe — Convict Labor.</p> <p>In the year i 888 the defendants entered into a contract with the state oí Minnesota to erect a building forming part of the state-prison at Stillwater. In the erection thereof, by arrangement between the prison authorities and the defendants, the labor of the plaintiff, who was a convict in state-prison, was availed of, the benefit «thereof going to the defendants. By the fall of a scaffold on which plaintiff was standing while engaged in plastering the interior of the building, the plaintiff was injured,-and, upon the expiration of his sentence, he brought suit against the defendants to recover for the injuries caused by the fall of the scaffold. Held, that the provisions of the act of the legislature of Minnesota, approved March 8, 1887, forbidding the farming out of convict labor, would not prevent the relation of master and servant from existing between the parties, if the defendants knowingly received the benefits of plaintiff’s labor; and that the factthalplaintiff, being a convict, was not entitled to compensation for his labor, was immaterial.</p> <p>2. Same — Damages—Disability During Period or Imprisonment.</p> <p>Held, further, that, so far as the injury affected plaintiff’s ability to labor during the period of his imprisonment, he could not recover therefor.</p>

<p>Customs Duties — Appraisers’ Decision — Review—Return.</p> <p>On proceedings to review the action of tho board of general appraisers in the classification of imported merchandise, under Act Cong. June 10, 1890, “to simplify the laws in relation to the collection of the revenues, ” a return of such board, iñ which the only fact certified is that “silk is tho component material of chief value, ” is insufficient, and will be sent back for a further description of the articles.</p>

At Law. Motion for further return of board of general appraisers under the act of June 10, 1890, entitled “An act to simplify the laws in relation to the collection of the revenues.”

<p>Appeal from District Court.</p>

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

<p>1. Patents ron Ixvextiojts — Istbixgement.</p> <p>The Brush electric light patent, No. 219,208, is valid, and its first six claims are iniringed by the Wood lamp. Following Brush Electric Co. v. FI. Wayne Electric Co., 44 Fed. Rep. 284.</p> <p>2. Samu^-Pbei.iminaey Injukotiox.</p> <p>The questions involved depending solely on the construction of two patents which have been fully examined in many of the tjnited States circuit courts, and an injunction at the final hearing appearing to be inevitable, an injunction pendente lite will be granted, notwithstanding laches of the complainant in asserting its rights.</p>

<p>1. Patents tor Inventions — Infringement— Suit in Equity' — Pleading.</p> <p>Under B,ev. St. U. S. 4920, which requires that, where the defense to a suit in equity for tlio infringement of a patent is prior knowledge or use. of the patent by others, notice shall be given with defendant’s answer of the names and residences of Hie persons having such knowledge or making such use, and of the place of t’ne use, it is not necessary that such notice should be under oath.</p> <p>2. Same — Answer under Oath — Pleading.</p> <p>Where complainant’s counsel in such suit consent to an order that the answer shall bo considered as amended by the insertion of such defense and the reguired notice, such consent is a waiver of any further oath.</p> <p>S. Same — Amendment—Setting Aside.</p> <p>Where the order allowing the amendment was made on motion supported by affidavits, among which ivas one having drawings attached showing the course of the water during the operation of the relief valve, which was the invention in suit, the fact that such drawing gives a wrong impression as to the operation of the valve is no ground for vacating the ordor, as having been procured by falsehood and fraud.</p>

<p>1. Patents ron Invention — Hovelty.</p> <p>Claims 1 and 2 of patent number 303,006, issued August 5, 1884, to Harris H. Hayden, for improvements in stoi'e-serviee apparatus, are not void for want of novelty and invention.</p> <p>2. Same — Infringement.</p> <p>The Hayden patent describes a mechanical send-off to impart an initial impetus to the carrier as follows: “ A represents a wire-way; B, one of the terminal suj>ports; I, a perforated slide, constructed to move freely on the way, and having a terminal finger, %>; a is a grooved pulley, supported by an arm, K, extending from the support, B; b, a guide pulley on the support, B; and e, a cord passing from the slide over the pulleys, and extending to a point within reach of the operator. ” When a carrier is in contact with the finger of the slide, a sudden pull of the cord will propel the slide quickly on the way, and impart the required impulse to the carrier. The claims of the patent do not specify the finger of the slide as a part of the combination. Patent No. 359,875, granted March 22,1887, to David Lippy, describes a mechanical send-off substantially the same as that of the Hayden patent, except that, in place of the finger attached to slide in the Hayden patent, the Lippy has the frame of the carrier extended under the wire-way so as to come in direct contact with the send-ofi, and receive the impulse from it. Held, that the finger of the slide is not an essential element of the Hayden combination, and that the Lippy send-off infringes the Hayden patent.</p>

The suit is for infringement of claims 4, 10, 11, and 13 of letters patent No. 330,920 issued to G. W. Taft for road-making machines.

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

<p>1. Patents eok Inventions — 'Child’s Chaik — Utility.</p> <p>Letters patent No. 224,923, issued February 24; 1880, to Joseph W. Kenna for a combination child’s high chair and carriage, consisting of the frame of a low chair on wheels, hinged at the lower front corners to the upper front corners of a frame to support it as a high chair, with a bail hinged to the lower frame for a handle to the carriage, turning under a yielding rest below the rear stretcher of the upper frame, to support the back as a high chair, are not void for want of utility, though a chair made of this combination alone would be liable, when used as a high chair, to tip forward, so as to throw the child out, by the weight of the child when thrown forward.</p> <p>2. Same — Infringement.</p> <p>Said patent is infringed by a chair which differs from the one described in the patent only in dispensing with the yielding rest, and carrying the bail up to the seat of the chair, where it will be held in place by the seat, and will support the back part of the chair. Following Thompson v. Derby, 32 Fed. Rep. 830.</p> <p>3. Same — Injunction—Laches.</p> <p>Where a defendant has been manufacturing an infringing article for 10 or 11 years, and the patentee has known of it for 5-or 0 years without making objection, a preliminary injunction will not be granted to restrain the infringement.</p>

<p>Admiralty Jurisdiction — Injury to Vessel in Draw.</p> <p>The admiralty jurisdiction of the federal courts extends to'a libel in personam for an injury to a vessel resulting from negligence in the management of a drawbridge over navigable tide-waters of the United States.</p>

<p>Salvage — What Constitutes — Compensation.</p> <p>The tug M. started on a voyage through Long Island sound with 15 boats and chunkers in tow. About 2 o’clock in the morning, the wind and sea having arisen, she tried to make a harbor, but, owing to her rolling, her steam-pipe broke, the smoke-stack went overboard, and she became helpless. She let go both anchors, and finally brought up with the tow about 500 feet off a lee shore, with many rocks in the vicinity. In the mean time one of the boats swamped and sank. After she had made signals of distress for an hour, the tug I., with car-floats in tow, rounded to, and, taking a hawser, began to move the M. and her tow slowly towards a harbor, and in the mean time two more of the boats sank. The I.’s sister tug, E., was shortly sighted, and assisted in taking the tow to a place of safety. The value of the tug and tow was about $30,000, that of the salving vessels, with the car-floats they had in tow, was 8300,000, and the I. was engaged in the service three hours and a half, and the E. about 45 minutes. Held, that the M. and her tow were i.i danger of total loss, and the service rendered was a salvage service, for which a compensation of 83,500 would be decreed.</p>

<p>Shikpixg — Caehiage or.Goons— Damages — Pebils of the Sea.</p> <p>A part of a cargo of sugar was damaged by water, during a tempestuous voyage in which the vessel passed through severe storms accompanied by heavy rains, and was much strained and her seams opened. The greater part of the damage was by fresh water. Held, as the rain-storms and the condition to which the vessel. was reduced would amply account for the presence of frosh water in the cargo, in the absence of satisfactory proof that tho damage therefrom arose from other canses, it should be attributed to “peril of the sea. ”</p>

<p>1. Oot/usios — Vessel at Faiii/t — Division oe Damages.</p> <p>in ease oí a collision between vessels, one of which has been guilty of a clear fault, there must also he clear evidence oí contributing fault on the part oí the other, to divide damages.</p> <p>3. Same — Vesset. at Anchor — Lights.</p> <p>A schooner collided with a yacht, which was at anchor in the channel oí a river. There was no one on the deck of theyacht. The mate whoso watch it was was in the mess-room, and probably asleep. A light had been burning during the night. The mate testified that ho saw it an hour before the collision, that it was shining on his feet, so that he could not have missed, and that ho had been absent from the deck only 10 minutes. On the schooner the master was on deck, the mate on the lookout, and a inun at the wheel, and they all testified that there was no light on the yacht. A witness who lived near the river had seen the yacht at anchor the day before, and noticed her light during the night. Two hours before the collision lie had looked for the light, and it was gone. Held, that it was clear that the yacht had kept neither anchor light nor anchor watch as required by statute.</p> <p>3. Same — Division of Damages.</p> <p>It was a very dark night, and the yacht was at anchor in the channel 35 miles from any frequented port. An expert testified that the lookout on the schooner ought to have seen the yacht at a distance of 200 or 300 yards, and that, if ho had seen hor at 300 yards, the schooner ought to have cleared the yacht. The schooner was sailing at the rate of 6 lino Is, and would have covered 300 yards in some seconds more than a minute. Held, that tho evidence of fault on tile part of the schooner was not clear enough to justify a division of damages.</p>

In Admiralty. Libel in personam by Joseph H. Humphreys, master and part owner of the steamer Fannie H., against the Charles Warner Co., owners of the schooner Sandsnipe, for damages for collision.

<p>CiBCurr Courts — Jurisdictional Amount-Suits by the United States.</p> <p>Act Cong. Aug. 18, 1888, provides that the United States circuit courts shall have jurisdiction of civil suits, “where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the constitution or laws of the United States, or treaties made, or which shall bo made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between the citizens of different states, or in which the matter in dispute exceeds, exclusive of interest and costs, the sum or valuó aforesaid, or a controversy between the citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects, in which the matter in dispute exceeds; exclusive of interest and costs, the sum or value aforesaid. ” Held, that the limitation as to amount does not apply to suits in which the United States are plaintiff's or petitioners.</p>

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

<p>In Equity. Motion to fix the amount of supersedeas bond.</p>

<p>Depositions — Consibekation op Exceptions.</p> <p>Where in a suit in the circuit court of the United States under Rev. St. U. S. § 4918, to have an interfering patent declared void, a special examiner, duly appointed, is taking depositions in Washington to be used in the suit, the examination wifi not he stopped on motion for the court to pass on exceptions to the evidence, so as to save expense. It is the rule of the court to allow the exceptions to be noted by the examiner so they may go to the supreme court in the record in case of appeal from the ruling of the circuit court thereon.</p>

Ill Equity. On the loth of July, 1890, ITemsley & Linboeker filed In this court a bill in equity against Myers as sheriff, and Irish as county attorney, of Riley county, and XL 13. Spillman as judge of the district court for the twenty-first judicial district of Kansas, which includes R.iley county.

<p>Lease — Exception—Deep.</p> <p>A lease for oil purposes described the premises demised as 40 acres of land, described by metes and bounds, “excepting reserved therefrom 10 acres, ” also described by metes and bounds, “upon which no wells shall be drilled without the consent of the party of the first part. ” Held, that only BO acres passed to the .lessee.</p>

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

<p>1. Equity — Pleading—Original Bill — Amendment.</p> <p>Plaintiffs’ bill alleged that defendant was about to sell certain stocks delivered to it as collateral security for money loaned to plaintiffs, and it prayed a full accounting, an injunction against the threatened sale, and that in case any sales wore made before final hearing they might be declared void. After an account had been taken, plaintiffs filed a supplemental bill, alleging that a sale had been made, and praying damages. Held, that, as plaintiffs knew all the facts connected with the sale before defendant answered, this new matter should have been brought in by amendment to the original bill.</p> <p>2. Same — Supplemental Bill — Demurrer—Laches.</p> <p>The proceeds of tho sale were taken into consideration in the accounting had in the case, and at the hearing plaintiffs did not insist on any exceptions to the master’s report. The supplemental bill was filed more than five years after plaintiffs had notice of the sale, and several months after final decree. Held, that the supplemental bill was filed too late, and should be dismissed on demurrer.</p>

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

<p>1. Husband and Wife — Action fob Alienation of Affection.</p> <p>Jn an action by a wile against another woman tor alienating her husband’s affections, and causing him to abandon her, plaintiff cannot recover unless it appears by a preponderance of evidence that the alienation ot affection and abandonment was caused by defendant knowingly, and by direct and active interference.</p> <p>2. Same — Pbbvious Divoeoe — Evidence.</p> <p>In such action, the complaint and evidence, in a suit for divorce previously obtained by plaintiff against her husband, are inadmissible.</p> <p>3. Same — Damages.</p> <p>The measure of damages In such action is based on the actual injury to plaintiff by the loss of her husband’s affection and support, and on the pecuniary circumstances of defendant; and, if the injury was inilicted wantonly and maliciously, exemplary damages may bo awarded'.</p>

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

At Law. Action to recover damages for alleged wrongful refusal'of defendant’s conductor to sell plaintiff a berth in a sleeping-car. On the 30th day of June, 1888, plaintiff entered defendant’s sleeping-car at 'Meridian, Miss., and applied to the sleeping-car conductor for a berth. He received answer that all the space was sold, and he could not be accommodated. He claimed there was a vacant upper berth that ho should have.

<p>"'""Statute oe Frauds — Equitable Title.</p> <p>Where plaintiff executed and delivered to defendant a deed of certain land, the legal title passed, although it was intended by both parties that the deed should not take effect until defendant made a sale of the land for plaintiff, but the equitable title still remained in plaintiff, and a subsequent oral sale thereof to defendant was within the statute of frauds and void, and in an action for a balance of the pur- ' chase money a demurrer to the petition was properly sustained.</p>

<p>Municipal Indebtedness — Township Bonds.</p> <p>Where township bonds are declared invalid by the courts, and the legislature afterwards passes an act providing for the payment of such bonds, the debt represented by the bonds is incurred at the date of such act.</p>

At Law. Findings of fact. This canse having come on regularly before the court, without the intervention of a jury, a jury having been duly waived by stipulation in writing of the parties, filed with the clerk of this court, Mr. E. S. Pillsbury appearing as counsel for plaintiff, and John T. Carey, United States district attorney, as counsel for the defendant; and evidence oral and documentary'' having been introduced by the respective parties, and the cause having been…

At Law. Act Cong. March 3, 1887, c. 859, § 1, provides that the court of ■claims shall have jurisdiction to hear and determine all claims founded upon “any contract, express or implied, with the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court- of law, equity, or admiralty, if the United States were suable.”

<p>1. Motion por New Trial.</p> <p>Grounds of, discussed, and held not sufficient.</p> <p>2. Forkiox Corporations.</p> <p>A foreign corporation may bo an “inhabitant” of a district or country other than that of which it is a citizen or subject, or where it was organized, within the meaning and purpose of the term, as used in section 1 of the judiciary act of 1888.</p> <p> <Syllabus by the Court.) </p>

<p>Appeal from Board United States General Appraisers.</p> <p>The importers, Schoverling, Daly & Gales, of the city of New York, on the 20th of October, 1890, imported, per steamer Amsterdam, into the port of New York certain gun-stocks with the usual metal mountings complete, without the barrels. The collector of the port assessed duty thereon under paragraph 170 of the tariff act of October 1, 1890, which provides for both a specific and ad valorem duty upon “all double-barrelled, sporting, breech-loading shotguns.” The collector held that they should pay such duty because the only use to which they could be put was in connection with the barrels of such arms, and it was admitted by the importers to be their intention to fit the stocks with barrels imported by another house, in which a member of their firm was a partner. The importers duly protested against this exaction of duty, claiming that their merchandise were not shotguns, but only parts thereof, and that they were properly dutiable under paragraph 215 of said tariff act of October 1, 1890, which reads as follows:</p> <p>“Manufactures, articles, or wares not specially enumerated or provided for, composed wholly or in part of iron, steel, * * * or any other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem."</p> <p>—And duly appealed to the board of United States general appraisers, sitting at the port of New York, which board affirmed the decision of the collector. The importers thereupon took the necessary proceedings under section 15 of the act of June 10, 1890, to bring the case before this court for a review of the decision of the board of general appraisers. The appraisers, in pursuance of an order of the court, duly filed their return, with the testimony taken before them, from which it appeared that the said firm of Schoverling, Daly & Gales had an agreement with another firm, of which Mr. A. Schoverling was also a partner, by which the latter were to order the barrels for these goods, with the mutual understanding that the stocks and barrels after árriving at the port of New York by different shipments were to be put together, so as to make completed double-barrelled, sporting, breech-loading shotguns; and that nothing remained to be done after importation to the gun-stocks or to the barrels, except the ordinary manipulation of putting them together.</p> <p>Cited Farwell v. Seeberger, 40 Fed. Rep. 529; Luckemeyer v. Magone, 38 Fed. Rep. 35; Merritt v. Welsh, 104 U. S. 694, claiming that the importers had the right to import goods in any condition to meet the requirements of the tariff act, in ordeyto have their goods dutiable at a lower instead of a higher rate of duty.</p> <p>Contended that, under the peculiar agreement shown by the evidence in this case, the completed gun-stock was, for duty purposes, only to be considered a part of an importation, the other'part of which was to arrive on another vessel, forming together, for all practical purposes, one importation of a completed shotgun; that the manufacture was complete, and nothing remained to be done after importation to make the merchandise a completed shotgun except to put them together, which could be done by any person; that they had been manufactured wholly and completely before importation, and adapted to be put together by the manufacturers before shipping; that the mere shipment of the completed shotguns under this arrangement, in two separate parts, was only a cunningly-devised scheme to evade the payment of the lawful duty upon completed shotguns, which evinced a very low standard of commercial morality; and that the duty was properly assessed by the collector upon the merchandise in question under paragraph 170 of the tariff act of October 1, 1890, (S. S. 10573 — G. A. 223.)</p>

<p>Habeas Corpus — Due Process op Law — State Practice.</p> <p>Where a person is arrested on a peace-warrant from one state judge, and committed to jail after hearing before another judge acting within his jurisdiction and proceeding in accordance with state practice, he cannot be released by the federal district court on habeas corpus, as being deprived of his liberty without due process of law, contrary to Const. Ú. S. Amend. 14.</p>

<p>1. Extradition — Wakrant—Ikkecídeaiíity 02? Pkocekdings — Tiuat,.</p> <p>A fugitive from justice, extradited and convicted for the crime for which the warrant of extradition shows he was surrendered, cannot defeat execution of sentence by setting up irregularities in the action of the foreign court which granted the warrant.</p> <p>2. Ciuminal Law — Sentence.</p> <p>A statute fixingopunishment, and providing that defendant “on being convicted shall be punished” by imprisonment, does not require sentence to immediately follow conviction; and the time defendant remains in jail after conviction and before sentence, awaiting a decision on his pleas in bar to other indictments, will not be deducted from his term of imprisonment.</p>

<p>1. Patents tor Inventions — Marking Unpatenteg Article.</p> <p>Letters patent No. 162,184, April 20,1875, i'or a metallic paper fastener, were for a T-shaped fastener, with a round button cap-shaped head, with folded or struck-up edges, the whole made complete out of one piece of metal. Letters patent No. 286,-148j October 2, 1888, consisted of a double-bladed shank with slightly dull rounded points, and a section only of the T-shaped shoulders was indented. The second and third specifications called for a metallic T-shaped fastener, having a folded head with indentations, and the same in combination with a metal cap closed upon the folded head. Held, that the patents did not embrace fasteners consisting of a double-bladed shank, and T-shaped shoulders not indented, with a button head made of a separate piece of metal tightly placed on.the shoulders.</p> <p>3. Same.</p> <p>A patentee and manufacturer of an article sold out to defendant company, and furnished it with the form and style of label, with dates of patents printed thereon, to use on the boxes containing the article. The,label called for a patent which did not include the article manufactured. Defendant had no actual knowledge of the fact, but relied on the advice and opinion of the patentee, who was a patent solicitor, and had a desk in its office. Afterwards he became a director, and the labels continued to be used. Held, that defendant was not affected by the patentee’s knowledge.</p>

<p>1. Patents fob. Inventions — Force-Blast Lamps — Invention.</p> <p>Letters patentNo. 234,916, granted to Robert Hitchcock November 30,1880, for an improvement in mechanical lamp-shells, covered a device intended to protect the air-forcing mechanism of force-blast lamps from drippings of oil. The specification recited that the oil reservoir was provided with a flat or slightly concave bottom, so that drops of oil could not find their way across it to drop into the works of the air blast below; that a tube or thimble projected upward from below the oil reservoir, so that oil dropping from the side of the reservoir would fall into the cavity between the tube and the lamp-shell. A prior patent described a force-blast lamp with an oil reservoir, the bottom of which overhung the air passage, and was provided with a drip angle, in which there was an annular cavity, formed by the projection of a tube into the converging sides of the lamp-shell. The drip angle formed a circle larger than the tube, so that it deflected oil into the cavity. Held, No. 234,-916 was void for want of invention.</p> <p>2. Same — Infringement.</p> <p>As the specification and the prior patent limit the claim to a combination in which the oil reservoir has a flat or slightly concave bottom, the patent is not infringed by a lamp whose oil reservoir has not such a bottom.</p>

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

<p>In Admiralty. Libel for seamen’s wages and supplies. On exception to the jurisdiction.</p>

<p>Mabiots Insubance — Total Loss.</p> <p>A steam-boat sprung a leak, which the crew found it impossible to stop. They therefore, acting according to their best judgment, allowed the steam-boat to sink in shallow water, and abandoned her. The owner informed the insurance company, whose agent promised to go and take charge of the boat, but neglected to do so until she had become a total wreck. Held, that the insurance company was liable as for a total loss.</p>

<p>In Admiralty. Suit for damage caused by the upsetting of the lighter Vigil.</p>

In Admiralty. These are libels filed by the United States, under the act of June 29, 1888, (25 St. at Large, 209,) to recover penalties for dumping mud, dredgings, etc., into the waters of the Hudson river.

<p>Jukisotctiox of Circuit Court.</p> <p>A ease in which the disputed questions are either not vital, or questions of fact purelv, or questions of mixed law and fact, which may be decided by a jury according to the evidence, under rulings and instructions of the court, not involving a decision of any controverted point as to the applicability or construction of any provision of the constitution or of any statute of the United States, does not come within the jurisdiction of a circuit court of the United States, by virtue of the clause of the statute giving jurisdiction of causes arising- under the constitution or laws of the United States.</p> <p> (Syllabus by the Court.) </p>

<p>Tiiansfiík of Causes moni Tebbitobiai. Comets.</p> <p>A written request to transfer a cause which was pending in a territorial court to the United States circuit court for the district of Montana, not filed until after the parties have voluntarily appeared in a state court and contested a motion in the case, and after compliance with an order made by the stato court, is too late to be effective in transferring the cause to the circuit court.</p> <p> (,Syllabus by the Court.) </p>

<p>Removal oe Causes — Tkasseer erom Territorial Courts.</p> <p>The twenty-third section of the act of congress, providing for the admission of Montana and other territories into the Union, provides for the direct transfer from the territorial courts of causes pending therein to the successors of said courts, and does not authorize the removal under any circumstances of a cause from a state court to a United States circuit court.</p> <p> (Syllabus by the Court.) </p>

<p>At Law. Petition for a writ of certiorari.</p>

<p>Eminent Domain — Condemnation by United States — Practice.</p> <p>Act Cong. Aug. 1, 1888, (25 St. at Large, 857,) provides that condemnation suits in behalf of the United States to acquire lands for public use are to be conducted, as to matters of practice, in the federal court having jurisdiction, in conformity, “as near as may be, to the practice, pleadings, forms, and proceedings existing at the time in like causes in the courts of record of the state” in which such federal court is held. Held, that the practice to be followed is that provided for condemnation suits in general, and in condemning land in New York the exceptional proceeding provided for the board of education of New York city by Laws 1888, c. 191, cannot be adopted.</p>

These cases are mo/ndamus suits, originally brought in the United States circuit court for the western district of Missouri, when Macon county was attached to that district. They were recently transferred to this court, and since the transfer certain motions have been filed therein by the relators, to which motions the respondents have filed a return.

In Equity. This is a bill for specific performance of a contract for the exchange of lands.

At Law. On motion for new trial. The language of section 2 of the statute under which this action for negligently causing the death of plaintiff’s intestate was brought is as follows: “Every such action shall be brought by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next…

At Law. Motion for further return of board of general appraisers under the-act of June 10,1890, entitled “An act to simplify the laws in relation to^ the collection of the revenues.”

At Law. This is an indictment for depositing an obscene publication in the United States post-office in violation of the provisions of section 3893, Rev. St. U. S., (25 St. p. 496.) The prosecution grew out of the following state of facts: The defendant is the editor and publisher of a newspaper at Valley Falls, Kan., entitled “Lucifer, the Light Bearer.” It is a paper of singularity.

<p>1. Patents for Inventions — Infringement—Novelty.</p> <p>In an action for infringement of patent, the prima fade presumption that plaintiff was the first inventor, and that the invention was a novelty, raised by introduction of the patent, must be rebutted beyond a reasonable doubt.</p> <p>3. Same — Combination.</p> <p>A combination of old elements producing a new and beneficial result is a patentable invention; but not if substantially the same combination has been used before, though used for a different purpose.</p> <p>3. Same — Evidence of Patentability.</p> <p>The fact that an application has been submitted to the scrutiny of the patent-office, and a patent issued, is strong evidence of the patentability of the invention.</p> <p>4. Same — Want of Invention.</p> <p>Want of invention of a combination cannot be predicated on the ground that the means are so simple that skilled mechanics believe that they could have produced the same result if required.</p> <p>5. Same — Combination.</p> <p>The use of less than all the elements in a combination of elements is not an infringement of the patent, provided an equivalent for the omitted elements, well known as a substitute at the time the patent issued, is not substituted.</p> <p>(>. Same — Abandonment.</p> <p>Abandonment of a patent must be to the public; it cannot be in favor of one person.</p> <p>7. Same — License.</p> <p>Where the patentee of an article knows that his employer is manufacturing it with the intention of using it, and allows him to do so without objection, a license may be implied.</p> <p>8. Same — Infringement—Measure of Damages.</p> <p>The measure of damages in an action for infringement of a natent on a dumping-car is the reasonable amount of royalty that ought to have been paid on each car, based on the utility and cheapness of the car as compared to others used for the same purpose.</p>

<p>ftlAfOYAT, OF CAUSES — PRACTICE—REMAND.</p> <p>Where it appears that the petition lor removal was never presented to the slate court, but. to the clerk thereof, and filed by him, and a certified copy immediately made and given the defendant, a motion to remand will be granted.</p>

<p>At Law.</p> <p>This suit was removed from the state circuit court. Process was served on October 7, 1890, at the city of St. Louis, Mo., by delivering a copy of the writ and petition to D. M. Parry, president of the defendant corporation. On the 20th day of October the corporation appeared specially in the state court for the purpose of removing the cause to this court. Having effected a removal of the cause, it filed in this court a plea in the nature of a motion to quash the service of process upon the corporation. Plaintiff moved to strike the plea from the files.</p>

<p>On Exception to Jurisdiction.</p> <p>This was an action by James W. Martin, a citizen of Mississippi, against V. & A. Meyer & Co., of Louisiana, a commercial firm, composed of Victor Meyer, Adolph Meyer, and other persons alleged to be unknown to plaintiff, for a balance alleged to bo due for goods sold by defendants for the account of plaintiff. Defendants filed an exception to the jurisdiction, alleging that the firm was composed of Victor, Adolph, and Solomon Meyer, and that the latter was a citizen of New York; that his name is published in the city directory of New Orleans as a member of the firm, and that plaintiff must have known the fact; but that bis name and citizenship was omitted from the petition to prevent the jurisdiction of the court from being ousted on the face of the pleadings. A jury was waived, and the cause tried before the court.</p>

<p>.Receiver — Appointment.</p> <p>In proceedings for the appointment of a receiver of an insolvent railroad company, one who is a party to or counsel in the cause, or who has been an officer of the company, will not be made the permanent receiver.</p>

In Equity. ' Bill by S. W. Carey and others against the Houston & Texas Central Railway and others. Complainant alleged that they were stockholders in defendant railroad company, and that the latter had issued several series of bonds, secured by distinct mortgages on its property. Some of these mortgages covered all its property, and some only part.

<p>Railroad Mortgage — Foreclosure—Intervention.</p> <p>In proceedings to foreclose railroad mortgages an intervening petition was filed by one claiming under a contract for the purchase of land from, the land-agent of the company. It appeared that the land in question, together with other lands, was specially excepted by the orders appointing the receiver from the property thereby put into his hands, and that he had never come into possession thereof; that in none of the several principal causes was there any controversy about the lands, nor any declaration of lien thereon in the respective decrees. It further appeared that both intervenor and defendant company were citizens of the same state. Held, that the petition was properly dismissed, both as thrusting a foreign litigation into the suit, and for want of jurisdiction.</p>

<p>1. Corporations — Liability op Stockholders — Contribution — Pleading—Mdlttpariousnuss.</p> <p>A bill by stockholders who have been compelled as such to pay corporate debts under the laws of the state where they are domiciled, and under which the corporation organized, against a foreign stockholder for contribution, is not multifarious, for, though the claim of each orator is distinct from that of the others, the grounds of the suit are the same.</p> <p>2. Conflict op Laws — Non-Resident Stockholders.</p> <p>The laws of the stale where a corporation is organized, as construed by tho courts thereof, are rules of property as to the rights and liabilities between the corporation and stockholders; and stockholders resident in that state who have been made liable as such under those laws for corporate debts may in equity maintain an action in a federal court for contribution against a non-resident stockholder, notwithstanding the fact that the principal liability could not have been enforced anywhere except in that state.</p> <p>3. Same — Relative Liability.</p> <p>Where the bill does not show but that the stockholders were all living and solvent at the several times of payment, nor proceed at all against the defendant for the inability of any of them, defendant’s liability to each will be in the same proportion to the amount paid as his stock bears to the whole stock.</p> <p>4. Same — Interest. .</p> <p>Where a stockholder is compelled to pay a corporate debt for which another stockholder is equally liable it is the same in effect as having his proportion of the amount detained by him, and in an action for contribution interest is recoverable.</p> <p>5. Same — Survivorship.</p> <p>In an action by several stockholders, who have been severally compelled to pay corporate debts, against a non-resident stockholder, the claims of orators who have died pending suit will not survive to the others.</p>

At Law. This is an action to recover damages for the death of plaintiff’s husband, alleged to- have been caused by the negligence of the defendant company.

<p>Fledue — Corporate Stock.</p> <p>Defendant, being the owner of shares of corporate stock, deposited the certificate with a trustee under an agreement with the other shareholders that the stock should not be taken out of his possession, or put on the market before a certain time, and took a receipt from the trustee reciting such facts. Afterwards he delivered the receipt to intervenor, with a power of attorney in blank, authorizing the transfer of the shares on the company’s books; but he gave the intervenor no order for the delivery of the certificate, and no notice was given to the trustee of the transfer. Held, under Civil Code La. art. 3158, providing that “when a debtor wishes to pawn * * * stocks * * * he shall deliver to the creditors the * *• certificates of stock * * * so pawned, ” that there was no pledge of the shares as against an execution creditor of defendant.</p>

<p>1. Insurance — Accident Policy — Pleading.</p> <p>In a suit on an accident policy, where the petition alleged that deceased died from erysipelas, resulting from an accidental laceration of a linger, an answer averring that in his contract with the insurer deceased had warranted “ that he had never had, and had not then, any bodily or mental infirmity, whereas in truth * * * said deceased had on various occasions prior thereto boon afflicted, and was then subject to and infected, with erysipelas, and that he eventually died of erysipelas, ” is demurrable, as failing to state a defense, in that It does not show that erysipelas was an infirmity which increased the risk of death in the event of an accident.</p> <p>2. Same — Repugnant Allegations.</p> <p>In an action on an accident policy which provided that the insurance should not extend “to injuries of which there should be no visible mark on the body of the insured, ” where the answer admitted the death of deceased from erysipelas ensuing upon the accidental cutting and laceration of one of his fingers, tho subsequent al - legation that “there was no visible mark of said alleged accidental injury upon the body of plaintiff’s testator” is l'opugnant to the admission, and the defense is not well pleaded.</p> <p>3. Same — Argumentative Averments.</p> <p>An averment in the answer that by its terms the policy was not to “extend to or cover death l’esulting from or caused by poison, * x or contact with poisonous substances,” and that “said alleged injury was caused by poison and contact with poisonous snbsl anees, ” is bad as being merely an argumentative denial of the allegation in the petition that the death “resulted alone from said injury. ”</p>

<p>1. Writs — Service by Publication — Affidavit—Tax-Title.</p> <p>In an action to enforce a tax-bill for a street assessment, where service was made on defendant by publication, the fact thatthe affidavit for publication was made by a third person, without disclosing whether he was agent or attorney for plaintiff, does not invalidate a judgment in plaintiff’s favor, nor affect the title of the purchaser at the sale.</p> <p>2. Tax-Title — Judgment—Clerical Errors.</p> <p>Where four separate suits on four separate tax-bills under the same grading contract were simultaneously brought against defendant, a, clerical error by the clerk of the court in transposing the court numbers in two of the cases on entering judgment, so that they do not correspond with the numbers given in the orders and proofs of publication, does not invalidate the judgment.</p> <p>3. Same — Acknowledgment of Deed.</p> <p>A tax-deed showed on its face that the judgment ordering the sale was rendered in, and the execution issued out of, the special law and equity court of Jackson county, Mo. The act creating this court makes the clerk of the circuit court of that county ex officio clerk of the special court. Held, that a certificate of acknowledgment of the deed, wherein the officer taking it described himself as “ clerk of the circuit court and ea; officio clerk of' the special law and equity court, ” and which then recited that during a session of “ the court aforesaid ” the shei’iff acknowledged the deed, would be presumed to have been taken in the special court, as there was no necessity for the certificate to have recited anything about the clerk’s being ex officio clerk of that court had the acknowledgment been taken in the circuit court.</p> <p>4. Same.</p> <p>Gen. St. Mo. 1865, c. 160, § 55, requires deeds of land sold at judicial sales to be acknowledged before the “clerk of the circuit court” of the county in which the land is situated. Held, that Laws Mo. 1873. pp. 195, 197, which created the special law and equity court of Jackson county, and which designated the ¿laces at which land should be sold under execution issued out of that court, and which provided that such sales should be governed by the general statutes regulating execution sales, conferred on the special court jurisdiction and control over such proceedings from the rendition of judgment to its consummation by execution, sale, and deed; and that, in view of the fact that sheriff’s deeds, involving a large amount of property sold, during a period of 15 years, under judgments of the special court, have been constantly acknowledged before the clerk of that court, a tax-deed, so acknowledged, will not be held void because of the failure to take the acknowledgment before the clerk of the circuit court. Explaining Mers v. Bell, 45 Mo. 333, and Lyndc v. Williams, 68 Mo. 360.</p>

<p>iMAriOKATIOTT — IiANIUSOr OF ImMXOUAXTS — POWEKS OF COU.ECTOK.</p> <p>The regulation of the secretary of the treasury declares that the superintendent of Immigration at the port of Wow York shall examine into the condition of passengers arriving at that port, and report to the collector whether any person is within the prohibition of Act Cong. Feb. 25,1885. Act Cong. Feb. 23, 1887, amending the act of 1885, provides that if, on such examination by the superintendent, any person shall bo found within the prohibition o f the act, and the same is reported to the collector, such person shall not be permitted to land. Held, that such power of determination is vested in the superintendent of immigration, and not in the collector.</p>

<p>1. Railboads — Right of Wat — Pleadings.</p> <p>Where, in an action on an award oí damages against the Northern Pacific Railroad Company for a right of way across plaintiff’s land, the answer, after denying the allegations of the petition, sets up an easement of way under a grant by Act Cong. July 2, 1864, over the land, which at that time was public land, and alleges that plaintiff’s entry thereon was subject to the grant, but fails to aver specifically a compliance with all the provisions of the statute which are prerequisites to the taking effect of the grant, and the replication admitted the grant, hut alleged that the right of way across his farm was not the route selected under the terms of the statute, which had been located some years before several miles further south, and that the company’s claim to a right of way under the grant was exhausted thereby, it was error to enter judgment for defendant on the pleadings.</p> <p>2. Awabd fob Damages — Action—Pleading.</p> <p>Where a complaint in an action on an award appraising damages sustained by plaintiff from the building of a railroad across bis land sets out bis ownership of the land, that defendant, a railroad corporation, has constructed its road over his premises, and appropriated a way therefor, the appointment of commissioners by a court of competent jurisdiction, their award, and. the failure of defendant to pay the same, a cause of action is stated, without negativing any defense which defendant may have.</p> <p>3. Evidence — Judicial Notice — Map of Right of Wat.</p> <p>Where the issue is as to the selection and location by defendant railroad company of a right of way across public land, under Act Cong. July 2,1864, and the defendant omits to plead the specific acts constituting the alleged location, the. court cannot take judicial notice of the filing of the map of its route with the secretary of the interior on February 21, 1872, or that the route thereby fixed was its general route, and not its definite route, the fixing of which required further surveys, although the map by the filing became a part of the department records.</p>

<p>Action at'Law on Distiller’s Bond.</p>

<p>Customs Duties — Appeal euom Appiiaisemest.</p> <p>The administrative customs law of June 10, 1890, (28 St. 137, 338,) § 14, provides for an appeal from the decision of the collector of the port of entry as to the rate and amount of duties to the board of general appraisers in New York, or to some other board constituted by the secretary of the treasury at some other port than New York. Section 15 provides that either party, if dissatisfied with the decision of the appraisers, may within 30 days apply to the circuit court in the district in which the. matter arises for a review of the questions of law and fact. Held, that the jurisdiction here indicated is vested in the circuit court for the district where the port of entry is situated, and not in that of the district where the board of appraisers meets.</p>

<p> Habeas Corpus. </p>

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

<p>1. Obscene Publications — Indictment—Demurrer.</p> <p>Though a defendant, under indictment for sending obscene matter through the mails, is not entitled, as under the English practice, to take the opinion of the court by demurrer whether the matter set forth was or was not obscene, it is proper for the court to construe the document, and decide whether a verdict establishing its obscenity would he set aside as against evidence and reason.</p> <p>2. Same — Alleged Medical Treatise.</p> <p>A pamphlet purporting to be a. printed medical treatise touching certain foul private diseases and their cure, and a list of 120 printed questions touching some 7 private diseases, to he answered by any one afflicted with such disorders, after reading the pamphlet, though without illustration, and expressed in clean and wholesome language, if intended for promiscuous circulation through the mails, are obscene publications within P.ev. St. U. S. § 3893, as amended by 25 St. 496.</p> <p>3. Same — Privileged Communications.</p> <p>Such publications will not, because of their character, be considei-ed privileged communications by a physician to a patient, in the absence of a showing that the defendant is a physician, and that the persons to whom they were addressed were his patients.</p>

<p>Patents fok Inventions — Insolvency—Rights of Receives.</p> <p>Though it bo conceded that under Rev. St. t). S. § 4898, the legal title to patents does not pass to the receiver ol an insolvent debtor, the receiver of a dissolved corporation, which was the equitable owner ol patents, may maintain a suit to compel the holder of the legal title to convey to him.</p>

<p>1. Patents for Inventions — Safety-Pins—Anticipation.</p> <p>Letters patent No. 336,149, granted January 4, 1881, to Henry C. Field for an improvement in safety-pins, consisting of a guide to prevent the pin from passing through the shield, was not anticipated by any prior device, and the improvement was patentable.</p> <p>3. Same — Infringement.</p> <p>A safety-pin with a guide differing only in form is an infringement,</p>

<p>1. Patents fob Inventions — Infringement—Gash Register.</p> <p>Letters patent No. 271,363, issued January 30, 1883, to James Ritty and John Birch, for an improvement in cash registers, was intended to remedy previous devices, which, when they became worn or clogged with dust, permitted two tablets, indicating the amount of the purchase, to he in view of the customer at the same time. This object was accomplished by means of a pivoted-supporting wing and connecting mechanism, whereby the support which holds up the tablet rods is pressed so far away from the shoulders of the rod that they are sure to fall by force of gravity. Held that, as cash registers were old at the date of the patent, it musí be confined to the specific mechanism, or its equivalent, which makes up the combination covered by it, and that it was not infringed by another cash register which accomplishes the same result by means of a sliding-bar, with projections, which reaches across in front of the rows of the tablets, ana is arranged upon a guide-frame in which the rods slide np and down.</p> <p>2. Sami; — Combined Gash Register and Spring Drawer.</p> <p>XiCtters patent No. 253,500, was issued February 14,1882, to Michael Campbell, for a combination of a cash register with a spring drawer; the connecting mechanism being a somewhat complicated system of toggle joints in combination with a sliding bar. Held that, as both cash registers and spring drawers were old, the patent would not be construed to cover all forms of connecting devices known at the time, and that it was not infringed by another cash-registering apparatus combined with a spring drawer, which does not employ any of the connecting devices described in Campbell’s patent. ,</p>

<p>1. Admiralty — Seamen’s Wages — Costs—Proctor’s Fees.</p> <p>The fee of libelant’s proctor for attending a reference in a proceeding in admiralty, not being among the fees enumerated in Rev. St. U. S. tit. 13, c. 16, than which none others are allowed to bo taxed as costs under Id. § 823, cannot be so taxed.</p> <p>2. Same — Telegrams.</p> <p>Where in an admiralty proceeding for seamen’s wages against a foreign vessel a commissioner, in the absence of the judge from the district, hoard the testimony, and issued process under Rev. St. U. S. §§ 4516,4547, and the libelant’s proctor, beginning to fear that the statute was not applicable, sent telegrams to the judge, asking him to issue or authorize his warrant of arrest, which he declined to do, such telegrams were for the convenience of the counsel, to save traveling expenses, and the money paid therefor cannot be taxed as costs, as money properly and necessarily expended.</p> <p>3. Same — Commissioner’s Costs. ■</p> <p>Where in admiralty proceedings for seamen’s wages there were four seamen whose cause of complaint was the same, they should be joined as complainants, under Rev. St. U. S. § 4547, and the commissioner is entitled to charge for issuing, filing, and returning but one summons on tbe master, and for but one certificate that admiralty process should issue, though in fact he issued four summonses and made four certificates.</p> <p>4. Same — Depositions.</p> <p>Under Rev. St. U. S. § 4547, authorizing the issue of admiralty process in proceedings for seamen’s wages on the certificate of a commissioner in the absence of the Judge, the discretion oí the commissioner is absolute, and he is not required to take and send up any depositions with the certificate, and lie cannot charge iees for the same, to he taxed as costs.</p>

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

<p>AramtAT/rT — Surplus—Breach op Contract — Rule 41.</p> <p>The mortgagor of a vessel gave the mortgagee an absolute bill oí sale upon condition that the latter should pay off the outstanding indebtedness, and that the mortgagor retain the use and control of the vessel for a year, within which time he might sell it, and pay the mortgage debt and interest. The mortgagee failed to pay the debts, and the vessel was sold under maritime liens, leaving a surplus in the registry. Both mortgagor and mortgagee intervened pro interesse suo, each claiming the surplus. Held, that the right of the mortgagor was in no sense a ,7us in re in respect of the surplus, but was simply a claim for damages against the mortgagee for Jailing to pay the vessel’s indebtedness, of which admiralty has no jurisdiction, even under rule 41, authorizing a distribution of a surplus upon a summary hearing, and in accordance with the principles of equity, the fund must be awarded to the mortgagee, leaving the owner to his action at law.</p>

<p>In Admiralty. Suit to recover damages for personal injuries.</p>

<p>In Admiralty.</p> <p>label by William H. Sloan, master of the schooner William II. Shubert, against the Kinar and the tug Ivanhoe; and libel by Lauritz Olansen, master of the bark Kinar, against the schooner William H. Shubert and the tug Ivanhoe.</p>

<p>1. Collision — Tugs and Tows — Liability oe Tug.</p> <p>The tug Brown, towing the Shubert astern, passing up the Delaware, met the tug Ivanhoe, towing astern the Einar, passing down, in a calm night, a mist hanging over the water to the height of 10 or 15 feet. The side lights of the vessels were hidden, but the Brown had been steering by the high lights of the Ivanhoe, believing them those at Finn’s point, and did not discover her mistake until, when rounding to, to anchor, she found herself close to the Ivanhoe. She then went ahead full speed hard a-port, blowing one blast, which was answered by a tug further down the river, both together being mistaken by the Ivanhoe for a two-blast from the Brown. The Ivanhoe starboarded, but immediately changed her helm to avoid a collision between herself and the Brown, the tows colliding. Held, as the Brown was in fault for mistaking the high lights of the Ivanhoe, in porting before she received an answer from her, and in not sounding her fog signals, she was responsible for the damages to the Shubert.</p> <p>■2. Same — Fog—Mistaking Signals.</p> <p>The tug Ivanhoe, passing down the Delaware at least six miles an hour, in a thickening fog, through a channel one-fourth mile wide, and straight two miles below and four miles above, and sounding no fog signal, was towing the Einar, which had a pilot on board. She met, nearly head on, the tug Brown passing up with a tow. When close together the Brown sounded a blast, which, being answered by a tug below, was believed by the Ivanhoe to be a two-blast from the Brown. The Ivanhoe starboarded without answering, and, seeing that a collision was imminent, ported, the tows colliding. Held, as the Ivanhoe was in fault in not giving fog signals, in not keeping off from the Brown, and in changing course without answering the signals, and by her negligence had contributed to the collision, and as the duty of the pilot was to control both tow and tug, the Einar could not recover from the Brown.</p>

In Admiralty. Suits for damage by collision; the first suit being for loss of the vessel, the second for personal injuries, and the third for loss of personal effects.

<p>1. Wharfage — Unsafe Berth — Vessel’s Right to Refuse.</p> <p>The master of a vessel, on learning of obstructions likely to injure bis vessel at ber designated berth, is justified in refusing to go to such berth until it is made safe, and may bold the consignee for the delay.</p> <p>2. Demurrage — Consignee Ui aisle.</p> <p>Under a bill of lading which states that consignee is to pay the freight and discharge subject to the conditions of a bill of lading which provides for the payment of demurrage by the consignee, such consignee, on receiving the cargo without objection, is liable for demurrage, though caused by a third party whom he has engaged to discharge.</p> <p>S. Same — Guaranty—Depth of Water.</p> <p>A stipulation in a bill of lading guarantying a certain depth of water to the vessel at her discharging berth render's such consignee liable for the delay caused by the lack of such depth.</p>

<p>Seamen — Discharge—Pokt oe Shipment.</p> <p>Where libelants shipped as deck-hands on a steam-boat at Cincinnati, without any agreement as to the duration of the voyage, the port of its termination, or their discharge, the legal presumption is that they are to be returned to the port of shipment, and, if upon their arrival at Pittsburgh they are discharged, they are all entitled, except one whose residence is Pittsburgh, to compensation for their time and expense in returning to Cincinnati, irrespective of the fact that Pittsburgh is tb*» home port of the boat. '</p>

<p>In Admiralty.</p> <p>Suit to enforce lien for towage.</p>

<p>1. Removal of Causes — Sepabable Coxtkovebsy.</p> <p>To an action claiming the rightful ownership of certain shares of stock in a resident corporation, which are in the name of non-resident stockholders, the corporation is an essential party, and there is no separable controversy.</p> <p>2. Same.</p> <p>There being no separable controversy, the cause is not removable, under Act Cong. March 3, 1887, (24 St. c. 373, p. 552, § 2, cl. 3,) as amended by Act Aug. 18, 1888, (25 St. c. 866, p. 434,) providing for removal when the controversy is wholly between citizens of difierent states.</p> <p>3. Same — Timely Application.</p> <p>Where the petition for removal was Sled by some of the defendants after answer, and after their time to answer had expired, but before the expiration of the time, and before answer by the others, the application by the answering defendants was too lato, and the others are subjected to their disability.</p>

<p>Sebvioe or Process — Nox-Residexce—Pubekíatiost.</p> <p>Statutes authorizing extraterritorial service oí process ought to be strictly construed, and under Act Cong. March 3, 1873, (18 St. 470, § 8,) providing that in certain cases the court may order a summons to bo served personally upon non-resident defendants, and, when personal service is not practicable, to be served by publication, an application for an order of publication, which alleges that the number of defendants is large, that the exact residence oí many oí thorn is unknown, and cannot with reasonable diligence be learned, and the great cosí oí obtaining personal sex-vice upon those whose i-esidences are known, but which fails to show that such service is impracticable, or to distinctly state the known places oí residence, or show the diligence used to ascertain the places of residence when unknown, must be denied.</p>

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

<p>Advebse Possession — Legal Title in Tbustee — Running or Statute.</p> <p>Where the husband, to give his wife the legal title to land, conveys to his son, who at the same time conveys to the wife, the son will be deemed to have the legal title, with power to sue, long enough to start the running of the statute of limitations in favor of one who has been knowingly allowed, since before the date of the deeds, to take and keep possession, and make valuable improvements, under the belief that he had a perfect title.</p>

<p>1. Clerk’s Fees — Acknowledgments.</p> <p>The acknowledgment is the separate act of each and every party executing the instrument, and the clerk of a federal court is entitled to a distinct fee, as prescribed by Rev. St. § 828, for each defendant and surety whose acknowledgments he takes to a bail-bond.</p> <p>2. Same — Authentication of Orders by Seal and Certificate.</p> <p>The copy of an order directing the marshal, under Rev. St. § 855, to pay witness and jury fees, or of mittimus writs issued out of court, should be authenticated by seal and certificate, for which the clerk must be allowed proper fees.</p> <p>8. Same — “For Filing Any Other Paper.”</p> <p>“Discharge tickets, ” issued out of tho district attorney’s office, officially notifying tho clerk that cortain government witnesses are no longor required, are properly filed by the clerk as “ other papers, ” within Rov. St. § 828, and ho is entitled to collect tho specified fee therefor.</p> <p>4. Same — Affidavits of Service by Witnesses.</p> <p>Affidavits of service by government witnesses are properly administered by the clerk, and he is entitled to charge therefor.</p> <p>5. Same — Filing Commissioner’s Papers in Criminal Cases.</p> <p>Under Rev. St. U. S. § 1014, 'providing for the examination of persons accused of offenses against tho United Slates before a commissioner of the circuit court, or other magistrate of any state, agreeably to the usual mode of process in such state, and that copies of the process shall be returned into the clerk’s office, together with recognizances of witnesses for their appearance, the clerk is entitled to a filing foe for each separate paper, and not to one fee only in each case.</p> <p>6. Same — Order to Bring Prisoner to Court.</p> <p>Orders made by the court upon the marshal to bring prisoners to court for trial who have been committed by commissioners to jails of other counties are not within the provision of Rev. St. § 1030, that no writ is necessary to bring into court any prisoner or person in custody, but that it shall be done upon order, and no fee shall be charged therefor by the clerk or marshal, which relates solely to prisoners and' witnesses while in attendance on court, and the clerk is entitled to charge the proper fees for making and authenticating the same.</p> <p>7. Same — “Dockets, Indexes, ” Etc., in Contempt Cases.</p> <p>The provision of Rev. St. U. S. §828, giving certain fees for “making dockets and indexes, taxing costs, ” etc., in any “cause, ” applies to proceedings by the United States against witnesses for contempt, and such fees are a legitimate charge by the clerk.</p> <p>S. Same — Okdeks oe Continuance.</p> <p>Orders of continuance from day to day in criminal trials are within Rev. St. U. S. § 828, giving the clerk for entering any order, continuance, etc., for each folio, 15 cents.</p>

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

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

<p>At Law. On demurrer to answer. •</p>

<p>At Law. On exception to the jurisdiction.</p> <p>The United States filed this petition in this court to condemn a part of Plum island. The statute of the United States authorizing the condemnation was the act of August 18, 1890, in which was the provision that the proceedings were to be prosecuted “in accordance with the laws” of the state in reference to similar proceedings. The law of New York state is the general statute of 1890, (Sess. Laws 1890, p. 266,) the provision of which was as follows: “The proceeding shall be instituted by the presentation of a petition by the plaintiff to the supreme court.” The defendants excepted to the jurisdiction of this court, claiming that under the words of the two statutes in question the petition must be presented to the supreme court of the state.</p>

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

<p>1. Forgery — Indictment—Evidence.</p> <p>Under Rev. St. U. S. § 5431, providing for the punishment of any one who shall, pass, uttex-, publish, or sell any falsely made, forged, counterfeited, or altei-ed obligation or other security of the United States, and Id. § 5413, defining an obligation or other security of the United States to mean, among other things, checks ox-drafts for money drawn by or upon authorized officers of the United States, an indictment charging that defendant did willfully, knowingly, and fx-audulently utter and publish as true a certain false,' forged, and altex-ed United States treasury warx-ant, with intent thereby to defx-aud the United States, then and there knowing the same to be false, forged, and altered, adequately states an offense against the United States, and minor defects therein will he cured by verdict.</p> <p>3. Same — Altering Pension Check.</p> <p>An indictment which charges that a genuine pension check di-awn by an authorized officer of the United States on an assistant treasure!-, directing the payment of money, was altered and fox-g'ed by the name of the payee being forged and fraudulently placed thex-eon as his indorsement, and that defendant knowingly and fraudulently uttered and published it as true, with intent thereby to defraud the United States, does not state an offense within Rev. St. U. S. § 5431, because such an instrument is not “an obligation ox- other security of the United States; ” nor within Id. § 5431, because it does not sufficiently describe any falsely made, altered, forged, or counterfeited wx-iting for the purpose of obtaining or receiving, ox- to enable any other person to obtain or receive, directly or indirectly, from the United States or their officers, any sum of money; nor within Id. § 5418, because it does not sufficiently descx-ibe any altered, forged, or counterfeited wx-iting, for the purpose of defrauding the United States.</p> <p>3. Same — Evidence—Forged Indorsement of Treasury Warrant.</p> <p>Under an indictment chax-ging defendant with uttering and publishing a certain 'false, fox-ged, and altered United States treasury warrant, evidence that defendant negotiated a genuine check drawn by an authorized officer of the United States upon an assistant treasurer, dix-ecting payment of money, upon which there was the forged indorsement of the name of the payee, is insufficient to sustain a ve diet of guilty.-</p>

At Law. The clause of section 3893, as amended September 26, 1888, under which the indictment was framed, is in substance as follows: “Every written or printed card, letter, * * * or notice of any kind, giving information, directly or indirectly, where or how, or of whom, or by what means an “obscene, lewd, or lascivious book * * * or picture, * * * may be obtained or made, * * * are hereby declared non-mailable matter, and shall not be conveyed in the mails;” and any person…

<p>1. TJmn& Mails to Dkfbaud — Indictment.</p> <p>An indictment charging defendant with a scheme to defraud, intending to engage apartments to be furnished and decorated as a Chinese physician’s office, and to represent to various persons through newspaper advertisements, circulars, and letters, to be sent, through the post-oiiicc establishment of the United States, that he was a Chinese physician, well skilled in the science oí medicine, etc., and having devised the aforesaid scheme to defraud, to be effected by opening correspondence with various persons by means of the post-office establishment of the United Stales, did in and for executing said scheme and in attempting so to do deposit in the post-office, to be sent, etc., a certain loiter, etc., is insufficient to charge an offense under Kev. St. U. B. § 5480, amended by 35 St. 873, because it fails to charge an intent to use the mails to defraud otherwise than by implication or recital.</p> <p>5. Saudi — Fictitious Name.</p> <p>The charge of such an unexecuted scheme is not a sufficient allegation that defendant was engaged in an unlawful business to bring the assumption and use of and request to be addressed by a fictitious name within Hev. St. § 5480, subsec. 3, and make it an oifense.</p>

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

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

<p>1. Patents fob Invention — Stake Decisis.</p> <p>In proceedings for infringement of letters patent, where their validity is put in issue on the grounds of want of inventive novelty and of prior use, a prior decree ' of the court in other proceedings, involving the same issue, sustaining the patent, will be conclusive, under the doctrine of stare deolsis, notwithstanding the action is against a different defendant.</p> <p>2. Same — Distinct Evidence.</p> <p>But where, in the second suit, it appears that the evidence to be offered upon the issue of prior use is very different from, and of much more weight than, that submitted to the court in the former case, the court will re-examine the defense upon its merits.</p> <p>3. Same — Aerating Liquids — Anticipation.</p> <p>Complainants’ reissued letters patent No. 9,129, of March 23, 1880, to F. C. Mussgiller and R. W. Schedler, for a “new and useful improvement in treating beer and other liquids, ” covered “the process of charging beer and other liquids of a similar nature with carbonic acid, by dropping into and tnrough the liquid lumps of bicarbonate of soda or of other alkali, thereby causing the acid discharged from the lumps to pass through the entire column of liquid, ” was anticipated by an article from Dingler’s Polytechnic Journal, published in 1863; by English letters patent No. 910, granted in 1852 to Barse and Gage; by Engjish letters patent No. 1,609, granted in 1863 to Clark; by English letters patent No. 3,160, granted in 1872 to Cooper; by French letters patent No. 58,807, granted in 1803 to Dufourmental and Poire; by French letters patent No. 59,527, granted in 1853 to Le Perdriel, — setting forth processes for aerating liquids by the use of gas-producing salts compressed into lumps, cylinders, lozenges, granules, or drops, which sink speedily to the bottom of the liquid, and from which the gas, as it is slowly evolved and rises to the surface, permeates all portions of the liquid, and thoroughly and effectually charges it as desired, instead of using the necessary salts in the form of powder strewn upon the surface of the liquid, where the resulting violent effervescence frequently causes an overflow and waste, — and are consequently void.</p> <p>4. Same — Application of Old Pbocess to New Pukpose.</p> <p>The fact that complainants’ patent was for a process of treating beer and similar liquids, and the anticipating -processes were applied to water or neutral liquids, is immaterial, since the application of an old process to an analogous subject,- with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent.</p>

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

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

<p>Admiralty Practice — Security tinder Admiralty Kudu 53 — Tnsuffiobnt Affidavit.</p> <p>An objection by the respondent in a cross-suit to giving security under admiralty rule 53 in the amount of the claim of the libel, on the ground that he cannot do so “without serious embarrassment to his business, and great expense and sacrifice,” is insufficient.</p>

<p>1. Admiralty — Jurisdiction—Defective Wharf.</p> <p>A claim against a wharf-owner for injury sustained hy a vessel in the dock hy reason of an alleged defect therein is within the jurisdiction of admiralty, and a libel in personam will lie.</p> <p>2. Res Adjudicata.</p> <p>But where such an action has been brought in the state court, and a verdict rendered for defendant, and plaintiff's motion for new trial overruled, and a notice of appeal given, the action of the court is res ad-judicata, although the formal judgment has not been entered, and the jurisdiction of the court is exhausted. An order entered in the circuit court after appeal to the supreme court, giving plaintiffs leave to discontinue their cause on payment of costs, is coram non judiice, and will not enable them to maintain a libel in a court of admiralty on the same cause of action.</p> <p>8. Dismissal of Suit.</p> <p>An order to discontinue a cause cannot be entered after judgment.</p>

<p>Libelfor Damages for Collision by the Schooner Jesse W. Knight against, the Steamer Wm, R. McCabe.</p> <p>Flanders & Pugh, for respondent, cited on the duty of schooner to hold her course sailing rule 22; The Allianca, 39 Fed. Rep. 476; The America, 37 Fed. Rep. 813. The change of course of schooner even if made at a. considerable distance was a fault. The Catharine v. Dickinson, 17 How. 170. The vessel which ought to hold her course must not embarrass the vessel whose duty it is to keep away by a change of course. The-Illinois, 103 U. S. 299; The Virginia, 24 Fed. Rep. 765.</p>

On Motion for Injunction. An ordinance of the board of supervisors of San Francisco, January-25, 1890, was as follows; “Order 2To. 2163. Prohibiting the suspension of electric wires over or upon the roofs of buildings, etc. The people of the city and county of Sail Francisco do ordaiu as follows: “Section 1.

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

<p>1. Public Lands — Railroad Companies — Pleading.</p> <p>Act Cong. March 3,1871, granted certain lands to the S. P. R. R. Co., and provided that if its route, when designated, should he found to he on the line of any other road to which land had also heen granted, the amount theretofore granted should be deducted from the quantity thereby granted to the S. P. R. R. Co., so far as their routes should he on the same general line. In bills brought by the government to set aside a patent to the S. P. R. R. Co., it is alleged that the route of the A. and P. Co., to which land had also been granted, and the route of.the 8. P. R. R. Co., “cross each other in the state of California. ”/ Held, that this allegation does not bring the land within the exception of said act, and that under such allegation, even if proof showed that the routes are in fact upon the same general line, it would not avail the government.</p> <p>2. Railroad Companies — Congressional Grant.</p> <p>Act Cong. July 27,1866, fully conferred upon the S. P. R. R. Co. the right to build the road described in and earn the land granted by that act, without the authority of the state legislature.</p> <p>3. Same — Amalgamation—Recognition by Congress.</p> <p>Act Cong. July 27,1886, recognized the S. P. it. It. Co., organized under a general law of California, and made it certain grants of land. Pursuant t.o Act Cal. Leg. March I, 1870, authorizing any corporation already formed, or thereafter to be formed, to amend its articles of association, and Act April 4, 1870, in terms authorizing the S. P. it. ft. Co to lile new and amendatory articles of association to enable it completely to conform to Act Cong. July 27, 1866, S. P. R. R. Co., and other railroads, October 11, 1870, filed articles amalgamating and consolidating themselves into a new corporation, — S. P. R..R. Co. Act Gong. March 3,1871, authorized the S. P. R. It. Co. of California (subject to the lawsof California) to construct a line of railroad from a point at or near Tehaehapa pass, by way of Los Angeles, to the T. P. R. R. at or near the C. river, with the same rights, grants, and privileges, and subject, to the same limitations, restrictions, and conditions, as were granted to said 8!. J’. R. R. Co. of California by Act July 27,1866. Held, that congress thereby recognized that the S. P. R. R. Co. of California, existing March 3, 1871, under the articles of amalgamation and consolidation of October 11, 1870, was the same S. P. R. R. Co. to which the grant of July 27, I860, was made. The authority conferred on said company by the act of March 3,1871, to build the road designated, was made subject not only to the general laws of California 'authorizing railroad corporations to amalgamate and consolidate their interests and amend their articles of incorporation, but to the special act of April 4,1870.</p> <p>4. Same.</p> <p>Pursuant to state authority, recognized by and made a part of the congressional grant of March 3,1871, the S. P. R. R. Co., April 15, 1871, filed amended articles of incorporation; and August 12, 1873, filed, together with the S. P. Branch R. R. Co., articles of amalgamation and consolidation, under the name of the S. P. R. R. Co. Held, that while in one sense a new corporation was formed, each was substantially and practically the same S. P. R. R. Co. mentioned in the acts of congress, and was so recognized by congress, and that the articles of amendment, amalgamation, and consolidation were authorized by congressional as well as by state legislation.</p> <p>5. Same.</p> <p>Commissioners having from time to time boon appointed to report in regard to the construction of the Southern Pacific Railroad, the road having been accepted by the president, and having been used by the government in the transportation of mail, military stores, etc., held, that these acts were acts recognizing the defendant company as the S. P. R. R. Co., to which the act of March 3, 1871, applies, and that the defendant company, being subject to burdens imposed by the act, is entitled to the benefits conferred by it as a consideration for those burdens.</p> <p>6. Successors and Assigns.</p> <p>Act Cong. July 27, 1866, having expressly granted lands to the S. P. R. R. Co., its successors and assigns, it is held that, if the consolidated company with the amended articles of incorporation is not technically the same corporation'referred to in Act March 3, 1871, it is within the express provisions of the grant, being the successor or assign of said company.</p> <p>7. Mexican (¿bants — When Cease to be Sub Judión.</p> <p>When a Mexican grant, by specific boundaries carrying all the lands within the designated boundaries, has been confirmed by a decree which has become final, the said decree specifically pointing out and designating the corners by natural objects on the ground, and the connecting lines, all lands outside those specific monuments and lines, from the date when the decree becomes final, cease to be sub judiee, if they ever were in that condition, within the meaning of those terms as used by thci supreme court in the cases of Mewhall v. Sanger, 92 D. 85. 761 ; Doolan v. Carr, 125 U. S. 638, 8 Sup. Ct. Rep. 1228; and V. S. v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177. Ross, J., dissenting.</p>

<p>Public Lands — Railroad Grants — Reservations—Pre-emption Claims.</p> <p>Act Cong. July 1,1862, (12 U. S. St. 489,) granted in aid of a railroad company all the odd-numbered sections of land within certain limits “to which a pre-emption or homestead claim may not have attached." In 1857 one J. had filed a pre-emption declaratory statement on land within the terms of the subsequent grant, which statement remained intact until after the final location of the railroad, and until 1885, when it was canceled because J. had never lived on the land. Held that, notwithstanding the subsequent cancellation of the statement, the pre-emption claim had attached to the land within the meaning of the statute, and hence such land is excluded from the grant, and is open to settlement after such cancellation.</p>

<p>1. Taxation — Constitutional Law — Discriminations.</p> <p>The article of the state constitution which provides that all property shall be assessed at a uniform rate is violated when it is shownthat assessing officers assess in any considerable amount property at one-third or one-half, and other property at two-thirds, of its cash value. National banks, like any other tax-payer against whom discriminations are made, are entitled to the protection of article oiled.</p> <p>8. Same — National Bank Shares.</p> <p>National bank shares are taxable, under section 5219, Rev. St. IT. S., as oilier personal property, against the shareholders, provided “that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens. ”</p> <p>3. Same.</p> <p>That statute permits the state to tax such shares under named conditions. Without such permission, a bank could not bo taxed; but the state constitution, aside from such conditions, fully protects plaintiff from unequal taxation.</p> <p>4. Same — Exemptions.</p> <p>When section 5219 is substantially observed, such bank shares are not exempt from taxation, though the bulk of the bank’s moneyed capital may be held in federal or state bonds; that is, the shares may bo valued' for taxation as thoy are rated or related to the whole of the bank’s moneyed capital.</p> <p>5. Samis — Di.scrimi nation — Assessment.</p> <p>When it is shown that the assessing officers fail, refuse, or omit substantially to subjt ct the moneyed capital of individual citizens not exempted by state laws as far as practicable to uniform taxation, or when it is shown that,'as a matter of fact, such officers assess only a- few tax-payers on such capital, and those only l'or comparatively trifling amounts, leaving several hundred thousands of such values not subjected' to taxation, then it follows that the enforcement of the state tax-laws operate practically so as to impose unequal and oppressively burthensome taxation on such banks as have their moneyed capital subjected to taxation, and said federal statute and article of the constitution are violated. Held that, under such facts as show a discrimination against such hanks, the shares should not be assessed at their commercial value, but their value for taxation should be fixed, after taxing or deducting from the banks’ moneyed capital all federal securities which may he included in the mass of the banks’ moneyed capital. In fixing this value, the shares, after such reduction, should be rated or related to the remaining amount of capital.</p> <p>6. Same — Annulling Assessment.</p> <p>In applying section 27, under which national bank shares are taxed, and section 28 of the revenue act of 1888, under which moneyed capital in the hands of individual citizens Is taxed, it appears that an inequality and discrimination is particularly wrought out against the complaining bank, and plaintiff is entitled to ad equate relief. Held, if it be shown that the assessing officers wrongfully, or through gross negligence, failed, refused, or omitted to subject moneyed capital, known by such officers to tie in the hands of individual citizens of the taxing district in any large sum,— say several hundred thousand dollai’s of such values, — or for any such cause, they, as a matter of fact, subjected only a trifling amount of such values to taxation, the plaintiff is entitled to relief to the extentof having the whole assessment as against the bank annulled.</p> <p> (Syllabus by the Court.) </p>

At Law. Suit by J. R. Leeson against J. R. Young, administrator of the estate of Sullivan, collector, to recover the excess of duties alleged to have been illegally exacted.

Rule to Show Cause why respondent should not be committed for contempt. Held: first'giving notice of the same by public proclamation at the door.

<p>1. Patents fob Inventions — Anticipation.</p> <p>Claims 1, 2. 3, 4, 5,7, and 10 of patent No. 274.363, dated March 20,1888, issued to Morton and Hodgson, are valid claims, and are not anticipated by the prior patent Mo 267.014, issued to E. Norton.</p> <p>2. Satie — 1 n fringement.</p> <p>Claims Nos. 1, 2, 3, and 5 of patent No. 882,567, dated May 8, 1888, issued to' John Soltor, are infringed by defendants.</p>

<p>Patents fob Inventions — Inebinoemext—Weight oe Evidence.</p> <p>In an action lor infringing a patent for electric bolts, defendants answered, under oath, denying that they’had ever used the invention or infringed the patent. It was admitted, however, that one of them made a belt, but he testified that he destroyed it without ever using or attempting to soil it. Complainant testified that one of defendants showed him a belt like his own, and offered it for sale. A witness said that defendants showed him a like belt, and offered it for sale. Another witness said that the wife of one of defendants showed and offered to sell him snch a belt. In answer to a letter notifying him that he was infringing the patent, one of defendants answered, through his attorney, that complainant had copied the belt from him, and must disclaim, or be prosecuted for perjury, and damages. There was other similar evidence. Held sufficient to show an infringement.</p>

<p>Shiitincí — Passengeb Regulations.</p> <p>Under Rev. St. IT. S. § 4499, providing that vessels violating the law relating to the carrying of passengers “may be seized and proceeded against by way oí libel, ” in the district court, such court has no jurisdiction until there has been á seizure oí the vessel. Reversing 87 Fed. Rep. 155.</p>

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

<p>1. Admiralty — Release of Attached Property — Addition of Parties.</p> <p>Where a suit has been brought, against one oí two ship-owners, and property attached thereunder released before the name of the other owner is introduced, the suit must be regarded as against the original respondent only.</p> <p>S3. Shipping — Average—Liability op Owner.</p> <p>A part owner of a vessel is liable in solido for a balance due on an average adjustment.</p> <p>3. Admiralty — Jitrisdiotion—Recovery on Average Adjustment.</p> <p>A district court proceeding in admiralty has jurisdiction by foreign attachment in a suit against avessel owner to recover a balance due on anaverage adjustment.</p> <p>i. Same — Conflict of Laws — Average Adjustment.</p> <p>A vessel having been damaged put into Fayal, and was unable to proceed on her voyage. Her cargo was removed, and the vessel sold. The master sought a substitute, but was unable to find one. He then collected pro rata freight from the underwriter’s agents, who shipped the cargo to its destination, advancing the necessary supplies, and chartering a vessel. Held, although the hill of lading at Fayal was taken in the master’s name, the voyage was abandoned, and a severance of interests occurred there, and hence the rights of the parties in an adjustment are to be determined by the rules prevailing at Fayal, even though no demand was made there for an adjustment.</p>

<p>Saivagu — Contract eoe Compensation.</p> <p>The owners of a certain vessel, on receiving a dispatch that she was disabled, engaged a tug of libelants to proceed to her relief for a stipulated compensation. They afterwards agreed to employ another tug of libelants for the same purpose, and at an agreed price, in case a dispatch should be received showing the vessel’s position to be different from that supposed when the first tug started. Such a dispatch was not received, but the owners employed a tug of others than libelants to proceed after tho vessel. Libelants then sent their second tug, which brought in tho vessel. The owners, when informed that such tug had gone, made no protest. Held, that libelants wore entitled to the stipulated amount, but not to other salvage compensation.</p>

<p>1. Collision — Negligence—Hazardous Undertaking — Failure to Warn Approach-ink Vessel.</p> <p>The libelant constructed at Sault Ste. Marie a raft, 1,200 ieot long, 250 loot, wide, containing-1,500,000 feet of logs included in a sack-boom, consisting of timbers fastened together at the ends with chains, and having' two or three cables thrown across to keep it from spreading. Two tugs were stationed, respectively, at the head and rear of the raft to help it along, and crowd it over to one side of the channel so as to permit of the passage of vessels. Entering a long', narrow channel in the Ste. Marie river, where the current is about four miles per hour, one of the tugs was sent down stream to warn approaching vessels. Such warning was given the Hiawatha and her tow, but none was given the Athabasca, a large steel passenger steamer, although her smoko was seen from the tug. As soon as the Athabasca became aware of the approach of the raft, she checked her speed as much as possible without losing her stoerag-e, and kept as close as prudent to the Canadian shore. At this time the raft was sweeping rapidly down stream, with a tug at either end, striving to pull it to the opposite side of the river. This resulted in carrying over the ends, leaving a large bulge in the middle of the raft, reaching within 60 feet of the Canadian shore. The Athabasca, not having sufficient room loft' her in which to pass safely, changed her course, and went through the raft, stem on, breaking- the boom and scattering its contents, resulting in a total loss, amounting to 813,000, which the libelant seeks to recover. Held, that it was a hazardous undertaking to take a raft of such size, form, and structure down the Ste. Marie river, knowing the perils incident to the almost constant passage of vessels, the swiftness of the current, and the occasional narrowness of the stream; and that it was an added negligence not to take effective measures to warn the Athabasca before she reached the narrows, her approach being known; and that such negligence constituted the cause to which the collision must be attributed.</p> <p>8.- Towing Rafts in Navigable Streams — Usages and Customs of Navigation— Mutual Rights.</p> <p>JSeld, that both Canadian and federal courts clearly recognize the right to tow logs in raft on navigable streams, such as the Ste. Marie, but that such right must be exercised with due regard to the rights of others, and the general usages and customs of navigation and commerce on such waters; and that while the libelant, in the exercise of such right of towage, was entitled, for the protection of its raft, to full observance on the part of others of the established principles of navigation, yet the manner in which the libelant exercised such right would necessarily affect its claim upon the diligence of others.</p> <p>3. Same — Division of Damages — Accessory Negligence — Facts Considered.</p> <p>ifeld that, the negligence of the libelant being established as the inducing cause of the collision, the charge of accessory negligence on the part of the respondent must he clearly made out before the damages should be divided; and, upon consideration of the facts, that none of the grounds suggested as showing contributory negligence on the part of the Athabasca are sufficiently established to warrant the court in dividing the damages.</p>

<p>Removal op Causes — Jukisimctional Amount — Pleading.</p> <p>In an action lor the specific performance of a sale of land, plaintiff alleged that she had performed all of her agreements, and asked for a conveyance. The petition for removal of the cause alleged that the matter involved exceeded, exclusive of costs, !!3,000. Held, on motion to remand for want of jurisdiction, that, there being no question of interest involved, it was unnecessary for the petition to allege that the amount involved exceeded $3,000, exclusivo of costs and “interest. ”</p>

<p>Removal oe Causes — Divekse Citizenship.</p> <p>A case commenced in a court of Washington territory, and which was pending at the time of the admission of the state of Washington into the Union, and involving only a controversy between citizens of a state and citizens of said territory, does not, on account of the diverse citizenship of the parties, come within the jurisdiction of a United States circuit court, and is not transferable thereto, unless the jurisdiction can be predicated upon some other ground.</p> <p> {Syllabus by the Court.) </p>

<p>Equity — Pleading—Responsive Averments.</p> <p>Where a bill against the executors and trustees under a will charges them with having delayed, neglected, and refused to invest a certain sum as directed by'the will, and to pay the income to complainant, the averments in the answer that defendants’ conduct was known to and approved by complainant, and that she had never, until shortly before the suit, requested the investments to be made, are responsive to the bill, and will not be stricken out on exceptions.</p>

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

<p>Railroad Mortgage — Foreclosure—Priorities.</p> <p>A claim against a railroad company ior causing the death of plaintiff’s intestate is a demand arising from a failure of duty, and could not by its creation benefit, preserve, or increase the corpus of the estate of the company, and is not entitled to priority upon the foreclosure of a mortgage thereof.</p>

<p>National Banks — Insolvency—Misconduct oí Dikectobs — Bight of Stockholdeks to Sue.</p> <p>A stockholder in an insolvent national bank for which a receiver has been appointed cannot sue its directors to make them personally liable for the mismanagement of the bank, as the right of action is in the receiver, and not in the individual stockholder.</p>

<p>1. Fraud — Collusion with Agent — Rights op Principal.</p> <p>A corporation which contracts with the agent of another corporation to furnish the latter a safety vault for §7,250, hut at the roqnest of the agent expresses the consideration in the contract to be 813,000, and afterwards gives the agent a statement ol' account showing a false credit of §5,750 for a payment, purporting to have been made by the agent, is liable to the agent’s principal for the amount realized by the agent by means of the fraud.</p> <p>2. Same — Right of Action.</p> <p>The fact that the agent is also a stockholder in plaintiff corporation does not affect its right to recover for the fraud perpetrated.</p> <p>3. Same — Knowledge of Rrinoifal — Liability.</p> <p>Where the fraudulent contract was made by defendant’s president, who was its managing officer, and made its contracts, defendant cannot escape liability oil the ground that this transaction was conducted by the president without its knowledge or concurrence.</p> <p>4. Same — Amount of Recovery.</p> <p>The fact that stock in plaintiff corporation was issued to the agent for the amount of the fraudulent excess in the price of the safety vault, and that this stock is worth less than its face value, does not affect the liability of defendant for the face value of the stock, that being the amount of the fraudulent overcharge.</p>

<p>1. Master and Servant — Injuries to Servant — Negligence.</p> <p>It is not negligence on the part of a railroad company to have switches without lights on them in its yard, unless it appears that it was the common and uniform practice to have such lights, and that the switchmen had a right to expect them.</p> <p>3. Same.</p> <p>Where a switchman is run over while passing from one switch to another in order to turn the latter, the jury must determine whether it was negligence on the part of the company that the foreman, who had turned the switch, so that there was in fact no need for plaintiff to go to it, failed to inform plaintiff that the switch had been turned.</p> <p>8. Same — Dangerous Speed — Evidence.</p> <p>The jury must determine whether the engine was negligently run at a high and dangerous rate of speed, and a town ordinance regulating the speed of locomotives within the town is to be considered, together with the rest of the evidence.</p> <p>4. Same — Contributory Negligence.</p> <p>Where plaintiff is injured while passing along the track between the two switches by stumbling on obstructions by the side o t the track, as he claims, while defendant claims that he slipped while attempting to get on the pilot of the moving engine, the jury must determine what caused the accident, and if they find that plaintiff was inj ured while attempting to board the engine he cannot recover.</p> <p>5. Same — Accident.</p> <p>Where it appears that the injury resulted from a “pure accident” there can be no recovery.</p> <p>6. Same — Measure oe Damages.</p> <p>Plaintiff’s age, habits, ability to earn, expectancy of life, pain, and suffering, together with the contingencies of human life, are to be considered in estimating the damages.</p>

<p> Habeas Corpus. </p>

<p>1. Patents eor Inventions — Combjnation.</p> <p>Letters patent No. 301,598, granted July 8, 1884, to Richard W. Hoplting for an improvement in roll-paper holders and cutters, the principal features of which are a hanger or bracket and a yoke, preferably in one piece, passing through a hole in the hanger or. bracket, having its arms bent to form a spring, and its ends curved to pass a short distance into the roller or core, thus suspending the roll of paper and allowing it to turn free on the ends of the yoke, in combination with a blade having its ends bent at right angles, so as to guide the paper when unrolled, in order that it may be cut straight, connected with the bracket by means of a knife yoke, made preferably of one piece, and passing through eyes or staples driven into the bracket and two coil springs wound on the knife yoke, and so arranged as to continually exert their force in pressing the knife against the roll, is a meritorious invention, though every element of the combination is old.</p> <p>2. Same — Anticipation.</p> <p>Such invention is not anticipated by any device intended to accomplish a similar result in which the element of a cutting edge pressed against the roll of paper, so that the loose end may be torn off by pulling it across the edge, and at the same time operating as a brake to check the motion of the roll, is wanting.</p> <p>3. Same — Infringement.</p> <p>Defendant’s device does not employ a.spring for holding the cutter against the roll, but makes the cutter itself heavy enough to serve for thht purpose.' Held, that this is a mere mechanical equivalent, and infringes plaintiff’s patent.</p>

<p>Í. Patents bob Inventions — Patentability—Rowlocks.</p> <p>The combination of a swinging rowlock and a pin or standard having an outward curvature, (letters patent No. 209,960, Nov. 19,1878,) intended to increase, while still limiting, the path in which the button of the oar can travel, is not patentable, as the curvature of the pin requires only mechanical skill.</p> <p>'2. Same.</p> <p>The claim of a rowlock, swinging or stationary, having an inward convexity upon the upright, (letters patent No. 209,980, Nov. 19,1878,) being simply the surface of a thole pin or upright inclined to the plane of the horizon, is not patentable; the same device having been long in use on dorios and other boats.</p> <p>8. Same.</p> <p>A rowlock with an inset in the sill, as described in claim 2 of letters patent No. 209,960, Nov. 19, 1878, so as to permit the oar to approach more nearly to a vertical position by removing- further from each other the vertical planes of'the outer side of the sill and the inner side of the offset arm, is not patentable.</p> <p>4. Same — Outbiggeb.</p> <p>Claim 4 of letter's patent No. 209,960, Nov. 19, 1878, for an outrigger consisting of double braces united at their outer ends, one of them being attached at its inner end to the center of the boat, and perpendicularly, or nearly so, to the side of the boat, whereby the latter can he grasped at its center for transportation, is not patentable, since no inventive skill is required to so change the position of the bracos.</p> <p>5. Same — Poot-Boabd.</p> <p>A foot-board for a row-boat having the point turned up at an angle with the body of the board (letters patent No. 231,017, Aug. 10, 1880) is a patentable invention, though the purpose was formerly accomplished by stuffing rags under the toe of the rower.</p> <p>6. Same — Patentability.</p> <p>The claim of letters patent No. 231,016, Aug. 10, 1880, for “an oar, the portion, D, of which that fits in the rowlock is in transverse section of a genera) pentagonal form, as described, whereby the oar may bo rocked in the rowlock without lost motion between the oar and the rowlock, ” is not patentable.</p>

<p>IiETTBits Patent — Inebin&ement—Title ov Patent.</p> <p>A suit for infringement of letters patent cannot be maintained where it appears that the complainant has not the legal title to any of the patents, but has merely the defendant’s contract to convoy them; and complainant’s position is not strengthened by a decree in bis favor in another suit brought to compel a conveyance of the patents by the defendant, or by the fact that the conveyance had been executed and delivered to the clerk in escrow, which decree and conveyance wore both suspended by appeal and supersedeas.</p>

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

<p>Ill Admiralty.</p>

<p>Motion to Bemand.</p>

<p>1. Federal Courts — Jurisdiction—State Statutes.</p> <p>An action under St. Wis. § 3186, enlarging the equitable remedies of quieting title and removing clouds, may be brought in a federal court.</p> <p>O. Tax-Deeds — Statute oe Limitations.</p> <p>The statute of limitations does not in the case of a tax-deed preclude inquiry as to whether a tax was levied, or, if levied, whether by competent authority, or whether the tax has been paid; but, barring these questions, the recording of a tax-deed valid on its face prevents any inquiry into the validity of the deed, or the regulating of the tax proceedings, after the lapse of the statutory period of limitations.</p> <p>3. Taxation — Sale in Separate Tracts.</p> <p>Where a quarter section of land is owned by one person, the assessment and sale thereof as a whole is not in violation of a statutory provision that land shall be assessed and sold in sepai’ate tracts.</p> <p>4. Registration oe Deeds — Index.</p> <p>Rev. St. Wis. 1858, o. 13, § 142, provide? that every register of deeds shall keep a general index, each page of which shall be divided into eight columns, with certain heads to the columns. Section 143 provides that the register shall make correct entries of every instrument received for record under the respective and appropriate heads, and the same shall be considered as recorded at the time so noted. Held that, though an index was imperfect, still, where there was nothing misleading about it, and it furnished all the information that an ordinarily prudent man would want to send him to the full record of the deed, it was sufficient.</p>

<p>Pledge — Release of Equity — Consideration.</p> <p>Plaintiff had pledged certain securities to defendant to secure the jiayment of a note. Upon non-payment at maturity, defendant advertised the securities for sale at auction. Upon plaintiff’s representations that he was unable to pay the debt at that time, and that the securities, which were of uncertain value, and had no market price, would not realize any considerable sum if sold at forced sale, defendant accepted a transfer of them, with the undertaking on its part to sell them at private sale at the best terms obtainable, and, after paying the debt and expenses, to pay one-half the net surplus to the plaintiff. After nearly two years, during which plaintiff was unable to obtain any price at which he could realize any surplus, defendant sold them for a sum somewhat in excess of the debt and interest. Held, that such a release of the plaintiff’s equity of redemption, made at a time subsequent to the original pledge, is not invalid, and that the undertaking of the defendant to sell the securities at private sale was a sufficient consideration to support it.</p>

<p>In Equity.</p> <p>This is a bill for specific performance of contract entered into between the complainant and the respondent county, of date September 7, 1887. The substance of this contract is as follows: That the respondent county court should issue and deliver to complainant 150 bonds, of the denomination of $1,000 each, amounting in all to $150,000, payable 30 years after date, redeemable at the option of the payor at the end of 20 years, to bear interest at the rate of 5 per cent, per annum, evidenced by coupons, etc., payable annually at a given bank in the city of New York, said bonds to bear date November 1, 1887; in consideration of which the complainant agreed on his part to surrender and deliver to the respondents $150,000 in old bonds and coupons and interest thereon, and as much more as he may have on hand, (such bonds, etc., being originally issued by said county on behalf of Grand Kiver township in said county, to aid in the construction of certain railroads;) and should also cause to be entered satisfaction of judgments rendered against said township on said bonds and interest, on the records of the courts where such judgments may be entered; the respondents to deliver such new bonds, and make the exchange on a basis of 60 cents in new bonds for every one dollar in old bonds, coupons, judgments, and accrued interest thereon, which complainant might surrender to respondents; and the respondents agreed to make further exchange upon the above basis whenever the complainant should present any of the above-described old bonds and coupons, or present evidence of having satisfied judgments on the same. Should the complainant be unable to so deliver and surrender all of said bonds and coupons, and cause all judgments against said township to be satisfied by January 1,1888, then the complainant was to surrender and deliver to respondent county a sufficient amount of said indebtedness to reduce the same to the lowest possible figure; and the respondents were to retain in their possession a sufficient amount of said now bonds to amount to $110 for every $100 of old indebtedness for which said township is liable, and deliver the remaining new bonds, if any, in their hands to the complainant. “It is understood that the bonds, coupons, and judgments heretofore mentioned consist of the outstanding and unpaid original bonds and coupons issued by the county court for and on behalf of said Grand River township to aid in the construction of certain railroads, but does not include the funding bonds issued under chapter 83 of the Revised Statutes of 1879.” The contract then provides for the respondents continuing to make resistance as theretofore to the payment of said indebtedness at the cost of the complainant, with a further stipulation for paying complainant out of said $150,000 certain costs. The complainant further stipulated, in consideration of the, premises, to pay all the accrued costs for which said township is liable by reason of the institution of any suit to obtain judgments on any of said bonds, etc., as well as all costs which may hereafter accrue in any suits against said township instituted upon any of said old bonds and coupons, and costs of mandamus proceedings, etc., and to release all judgments, either heretofore rendered, or any that may hereafter be obtained, against said township, on any of said old bonds or coupons, and have satisfaction of record duly entered thereof. “The true intent of this contract is that for the 150 bonds of the denomination of $1,000 each, delivered to said party of the first part, (the complainant,) he, the said party of the first part, will protect and hold harmless the township of Grand River, in Gass county, Mo., against all of their old railroad indebtedness, which originally consisted of bonds and coupons, and protect said township against all judgments rendered thereon, and against all costs accruing in any suits or proceedings instituted on any such bonds, for which said township is now or may hereafter be liable. It is further agreed that said party of the first part shall use due diligence in securing and surrendering to said party of the second part all the bonds, coupons, or judgments on same, of the old indebtedness of said Grand River township; but should said party of the first part fail to secure all of said indebtedness by the 2d day of October, 1893, then if no suits be pending against said party of the second part for the collection of any of said old bonds and coupons, and no unsatisfied judgments existing against said second party, the said second party shall deliver over to said first party all the remaining new funding bonds remaining in their hands, said old bonds and coupons being by that time outlawed and valueless. The contract to he null and void unless ratified by the qualified voters,” etc. There is a like contract respecting the indebtedness of Gamp Branch township, with the exception of the proportion of new bonds to the old bonds or indebtedness to be exchanged. After the execution of these contracts the count court duly submitted the matter of ratification to the qualified voters of said townships, who duly approved the same. The new funding bonds were duly prepared and executed by the county court, and the complainant proceeded to take up, and presented for surrender, all the outstanding indebtedness of said. Grand River township as he claims, with the exception of about $3,300 in amount, and all of the indebtedness of Camp Branch township. The respondents have delivered to complainant $115,000 in new bonds on account of Grand River township, and also withhold part of the new bonds on account of Camp Branch township. The bill asks that respondents be required to fully perform said contracts, with the exception of the said amount of the outstanding claims against said Grand River township. The substance of respondents’ resistance to this action is predicated of the following state of facts: In October, 1871, after said township bonds had been issued and sold, the county court made an order reciting that certain of the coupons on said bonds were past due and unpaid, and that for the purpose of maintaining the credit of the county it ordered that there be issued county funding bonds, for the benefit of Camp Branch township, in the denomination of $500 each, to the amount of $8,000, with coupons, and like bonds with coupons, for the benefit of Grand River township, to the amount of $14,000, for the payment of the said past-due coupons of interest. Said bonds purported on their face to be obligations of the county, and not those of the townships'. These bonds were placed upon the market, and purchased by innocent, bona fide parties. On their maturity suits were instituted thereon in the United States circuit court for this district at Jefferson City. It was found by the court, on the evidence before it, that said bonds were so issued by said county court for and on account of said townships to pay interest on their indebtedness; that the county court had no right to thus saddle upon the county at large the debts which of right and law pertained alone to the respective townships. But as the bonds on their face purported to be the obligations of the county, and were funding bonds which the county might under certain circumstances by law issue, and the same were purchased in market overt, without any notice to the purchaser of their real consideration, judgment went against the county therefor in 1874. These judgments have never been satisfied by the county, or any one for it. It is claimed by respondents that these judgments are within the terms of the contract with complainant, and that until the same are satisfied by him he is not entitled to the delivery of the amount of such new bonds as represents the proportion of said judgments.</p>

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

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

<p>Vendor and Vendee — Rescission oe Contracts — Fraudulent Representations.</p> <p>Defendants received an option to purchase mining property in Mexico, from the owners, for $110,000, and authorized an agent to sell the same for that amount, agreeing to allow him two-thirds of any excess he might obtain over that price. The agent entered into negotiations with certain persons in New York city, which resulted in the formation of a syndicate to organize 'a corporation for purchasing the property. The agent agreed with the promotersto sell the property for $150,000, and to subscribe and pay for two-tenths of the purchase money himself as one of the promoters. The corporation was organized, and the agent subscribed for stock to the extent of his part-of the purchase money. He was irresponsible at the time, and known to be so by the defendants. He had represented to the other promoters that the price which the defendants were to pay the owners for the property was $150,-000, less a small commission of about $2,500; that the whole price, less this commission, wont- to the owners; and that the defendants were interested only as creditors of the owners and to the extent of the commission. Before the corporation received a conveyance of the property its officers discovered the falsity of the representation made by the agent of the defendants, and notified defendants that the corporation would not accept a conveyance. In the moan time the agent, acting under a power of attorney from the corporation, had gone into possession of the property, and, in conducting mining operations there, had created debts against the corporation. The defendants knew that he had no authority to contract liabilities for the corporation beyond the amount of letters of credit which were to be furnished him by the company; but they advanced at his request about 030,000 upon drafts drawn by him upon the corporation. The corporation promptly offered to surrender possession of the property to the defendants, and upon their refusal abandoned possession. The defendants brought suits at law, one to recover the purchase price of the property, and another to recover for their advances upon the drafts. Thereupon the corporation filed this bill in equity to restrain the prosecution of the suit at law. and annul the agreement of purchase. Held: (1) Complainant was entitled to rescind the purchase because of fraudulent representations of defendants’ agent, though defendants themselves were innocent of fraud. (3) It Is the duty of a promoter towards his associates to make full and fair disclosure of all facts within Ms knowledge which if known would probably load to an abandonment of the enterprise. (3) That the agent sustained a fiduciary relation to his co-purchasers, and Ms false representations entitled them and the corporation to rescind the agreement-of purchase. (4) Defendants cannot be made liable for the expenses of organizing or conducting the corporation, although the purposes of its organization failed by reason of the fraud of the defendants’ agent. (5) The complainant is liable to the defendants for the moneys advanced on the drafts of the agent to the extent of letters of credit given to him by the corporation, but no further.</p>

<p>1. Vacating Decree — Evidence—Res Adjüjhcata.</p> <p>A bill of review to annul a decree cannot be maintained on tho ground that a decree in a collateral suit between the parties, which was introduced as res ad/judir cata upon some of the issues in the cause, has, since the decree, been set aside by the court which rendered it, where it appears that tho collateral decree was void for want of jurisdiction of the court, and was vacated for that reason. The vacating of the decree did not detract from its original inoperativeness as res adjudícala, and therefore is not new matter arising since the decree now sought to he annulled, within the rules that apply to hills of review.</p> <p>2. Same — Neglect or Trustee.</p> <p>A bill to annul a decree for fraud cannot be maintained upon the theory that the defendants, who were trustees, were derelict in their duty to their cestuis que trustent in not availing themselves of defenses which they might have presented, whore it does not appear that the complainant in the suit was cognizant of any misconduct on the part of the trustees, and where they were the proper parties to represent the beneficiaries and litigate the cause for them. Under such circumstances the adverse party cannot be deprived of the benefit of tho adjudication which he has obtained.</p>

..In Equity. Complainants, as executrices of A. N. McKay, surviving partner of the firm of Sledge, McKay & Co., filed their bill in 1889 against William M. Sledge, as executor of W. M. Sledge, deceased, F. R. Sledge, W. D, Sledge, and O. D. Sledge, executors of F. R. Sledge, deceased, ■and as surviving partners of the firm of F. R.-Sledge & Sons.

<p>On Application for Rehearing. No former opinion was filed. .</p>

<p>Pobdio Land — Patent—Cancellation.</p> <p>Although in a suit to cancel a patent to public land entered as timber land it appears that the land was not in fact unfit for cultivation, and chiefly valuable for its timber, and therefore not subject to entry as timber land, yet if the patent does not show that the government in issuing it relied upon the representation that it was timber land, the title will be protected in the hands of a bona fide purchaser.</p>

<p>Public Iand — Patent-Cancellation.</p> <p>A homestead patent issued under Rev. St. IT. S. § 2291, will be canceled in a direct proceeding against the original patentees lor that purpose, where there was no actual residence lor five years by the person who made the entry, nor by her heirs alter her death, upon the land prior to the issuance of the patent, and where the proofs in the land-office on which the entry was allowed only show that the person making the original application to enter it as a homestead lived on it for only three or four months before she was taken ill, and from that time no residence on the land was shown by the testimony.</p>

<p>Public Land — Cancellation oe Entkies.</p> <p>The power of the commissioner of the general land-office to cancel entries of public lands after final proof has been made and a final certificate issued, extends only to cases of entries made upon false testimony or without authority of law; and the decisions made in the land department are only conclusive in so far as they relate to pure questions of fact unmixed with conclusions of law. In a suit for an injunction to prevent waste, held, upon exceptions for insufficiency, to a plea alleging cancellation of the pre-emption entry under which the plaintiff claims the land pursuant to a decision of the secretary of the interior in a contest proceeding initiated after final proof, that such a decision 'containing no special or separate findings of fact, ana only a declaration to the effect that the pre-emptor “had not made his filing, application, and entry in good faith to appropriate the land to his own use.and benefit, as required by law, ” and thatlie had not “made the necessary residence, cultivation, and' improvement to entitle him to enter said land, ” is not conclusive upon the courts, and that the plea is insufficient.</p>

<p>Iii Admiralty.</p> <p>The .passenger act, (U..S- St. 1882, c. 874, § 4,) relating to the treatment of steam-boat passengers, provides that—</p> <p>“An allowance of good, wholesome, and proper food, with a reasonable-quantity of fresh provisions, which food shall be equal in value to one and a half navy rations of the United States, and of fresh water, not less than four-quarts per day, shall be furnished each of stieli passengers. * * * If any any such passengers shall at any time during the voyage be put on short allowance for food and water, the master of the vessel shall pay to each passenger three dollars for each and every day the passenger may have been put on short allowance. * * * And for every willful violation of any of the provisions of this section the master of the vessel shall be deemed guilty of a misdemeanor, and shall be fined not more than five hundred dollars, and be imprisoned for a term not exceeding six months. The enforcement of this penalty, however, shall not affect the civil responsibility of the master and owners of the vessel to such passengers as may have suffered from any negligence, breach of contract, or default on the part of such master and owners. ”</p>

<p>1. Cabbiees oe Passestgebs — Ticket—Bbeach oe Conibact.</p> <p>Defendant railroad company also owned a line of steam-boats running in the Mississippi river, and sold tickets good between stations and landings either on the railroad or steam-boats, and entitling passengers to be carried either to the station named or to the one nearest on the opposite bank. Having sold plaintiff such a ticket, defendant, in retaliation for his refusal to give. the boat line his entire freight, refused to land him at the landing opposite the station named in the ticket, saying that they had abandoned the landing. Held, a breach of the contract embodied in the ticket, for which plaintiff was entitled to at least nominal damages.</p> <p>2. Same — Damages.</p> <p>Tho actual damages being purely nominal, a recovery of §60 was proper.</p>

<p>Seamen — Wages—Mutiny'.</p> <p>Libelants wore seamen on the schooner S., which while at anchor during a heavy head-wind had her windlass carried away. The crew then refused to get the vessel under way, demanding- that the vessel be taken to the nearest port for repairs, or, in lieu thereof, that they be paid $50 each additional wages. Tier sea-going qualities had not been seriously impaired. But one of her two large anchors was lost, and the windlass, though a convenience, was not essential to her safety. After urging the men to do their duty without success, moved by tbe lateness of the season, and the difficulty of procuring- another crew in that locality, he made the promise, and entered it on the shipping articles. Upon arrival in port, their wages as originally contracted for were offered to them, but were refused, and a libel brought to recover them with the additional compensation. JELeld, that there was no such unseaworthiness as to absolve libelants from the obligation to serve, and their refusal, under the circumstances, amounted to mutiny, for which all wages must be decreed to be forfeited.</p>

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

<p>Towage — Negligence of Tug.</p> <p>Where a tug, in attaching to its tow a heavily loaded barge, collided with it, causing some of its seams to open, and handled it in a reckless manner, against the remonstrance of the master of the barge, it is liable for the damages resulting therefrom.</p>

<p>In Admiralty.</p> <p>The steam-boat Morrisiana, going at night with a strong flood-tide up the .East river, overtook- two steam-boats, also going up stream. When about off Ninth or Tenth streets, New York, in a narrow part of the river, the steam-boats ahead gave two whistles, and stopped to await tho passing of the tug Intrepid, whieh, with a ear-float along-side, was coming down stream near the Brooklyn shore. The Morrisiana, without stopping, ported, to pass around tho boats ahead, and discovered the tug and car-float so near that it was impossible to escape collision.</p>

At Law. This is a suit brought by plaintiffs by attachment against the defendants. The writ of attachment was duly issued, and the same was by the marshal levied upon the property of the defendants, but not taken into actual possession by the marshal for the reason that the property was in the actual possession of the sheriff of Crawford county by virtue of prior writs of attachment issued by 'the circuit court of the state; These facts are recited in the levy of the marshal.

<p>1. Customs Duties — Suits to Recover Excess — Appeal prom Collector — Estoppel.</p> <p>Under Rev. St. U. S. § 3931, requiring an action for the excess of customs duties paid under protest to be brought within 90 days after the decision of the appeal from the collector by the secretary of the treasury, it is not the duty of the collector to inform the claimant of the disposition of the appeal by the secretary, and the fact that the collector, by his silence, leads the claimant to suppose that the appeal has not been acted on, when in fact it has been decided, does not estop the collector from setting up the 90-day limitation to a suit by the claimant to recover the excess duties.</p> <p>3. Same — Pleadins—Departure.</p> <p>Where in such suit the answer alleges that the appeal was decided more than 90 days before the suit was brought, a reply setting up that the collector is estopped from pleading the limitation because of his silence and failure to inform plaintiff that the appeal had been decided- is not a departure from the petition, which alleged that the appeal had not been decided before the suit was brought.</p> <p>3. Estoppel — Action at Law.</p> <p>Matters of estoppel in pads may be set up in actions at law as well as in suits in equity.</p>

<p>Customs Duties — Liquidation—Suit to Recover — Objection to Appraiser — Protest and Appeal, Necessary to Depensb — Rev. St. § 2931.</p> <p>The collector having jurisdiction of customs cases and the appointment of a proper appraiser, any objections to the latter must be made first to the collector, and afterwards due protest and appeal made to the secretary of the treasury under section 2931, in order to entitle the merchant to raise such objections as a defense when sued for the duties as liquidated. The recent cases of XX. S. v. Schlesinqer, 120 U. S. 109, 7 Sup. Ct. Rep. 442, and Oelbermann v. Merritt, 123 U. S. 356, 8 íáup. Ct. Rep. 151, have not changed the former rule.</p>

<p>In Bankruptcy.</p>

<p>COKSTITUTIOKAI, XiAW — JTouitTEHOTII AmrxDMEXT.</p> <p>City ordinance No. 2191 oí San Francisco, making it a punishable offense to visit any gambling place located within certain specified limits, which designates what is known as the “Chinese quarter, ” applies to all alike, since white men as well as Chinese, live therein, and the prohibition extends lo “any person, ” irrespective of race or color, and is not therefore within the language of the fourteenth amendment.</p>

<p> Habeas Corpus. </p>

<p>Trade-Mark — Infringement—Evidence.</p> <p>In a suit for infringing a trade-mark, it appeared that for many years plaintiff had manufactured and sold a chemical preparation for medicinal purposes under the name of “Bromidia, ” a word coined for and arbitrarily applied to the preparation, and that in 1881 it had registered that word as a trade-mark in the patent office; that defendants subsequently manufactured and sold a similar compound, intended for the same uses, which they labeled, “ Compound Elixir Chloral & Bromide of Potassium, ” underneath which, in large letters, the most prominent and conspicuous word on the label is the word “Bromidia,” while below, in smalley type, though distinct and of good size, is a statement that it is prepared by defendants. Held an infringement of the trade-mark, by which, incautious purchasers are likely to be deceived, and that an injunction pmdente lite must be granted.</p>

<p>Trade-Mark — Cream Baking-Powder.</p> <p>On motion for preliminary injunction, to restrain the use of the word “ Cream ” ill connection with the words “ Baking-Powder, ” it appeared that complainant, since 1800, had manufactured and sold an article which it designated as “Dr. Price’s Ci’eam Baking-Powder; ” that the word “ Cream ” had not been used on packages of baking-powder before that time: and that it is not descriptive of an ingredient of the article, or of its quality or kind. Held, that the injunction would be granted.</p>

<p>X. KunmiAii Courts — Jubisdictios—Ghost; is Actios.</p> <p>A proceeding in equity to compel the transfer upon the books of a corporation of corporate stock which the complainant had purchased from a third person, is not a suit “to recover the contents of any promissory note or other chose in action in favor of any assignee ” of which jurisdiction is excluded from the federal courts by Act Cong. 1888, § X.</p> <p>2. Same — Gmziitrsmp op Parties.</p> <p>The, exemption from suit out of the district of inhabitancy, secured by Act. Cong. 1888, $ 1, is personal to a defendant, and may bo waived; and where suit is brought by a citizen of Massachusetts against a Vermont corporation and a New York corporation in the circuit court of Vermont, it will not be dismissed on motion of the Vermont corporation for want of jurisdiction of the parties in the absence of objection by the New York company, especially if the suit is a proceeding to enforce an equitable claim to property in the district within the meaning of Kev. St. U. S. § 788.</p>

Act Cong. March 3, 1887, (24 St. 554,) relating to the removal of causes from the state to the federal court, provides that “ whenever any party, entitled to remove any suit, * * * may desire to remove such suit from a state court to the circuit court of the United States, he may make and file a petition in such suit in such state court, at the time or at any time before the defendant is required, by the laws of the state or the rulo of the state court in which such suit is…

<p>1. Federal Courts — Removal of Causes — Jurisdiction—Judicial Notice.</p> <p>Where a complaint in the state court alleges that complainants claim under a designated state act, not set out in full in the complaint, and that defendant’s claim arises under a previous designated act, alleged to he contrary to the state constitution, the federal court, on defendant’s petition for removal, on the ground that the later act was contrary to the United States constitution, as impairing the obligation of their contract under the former act, will take judicial notice of the acts in determining its jurisdiction.</p> <p>2. Same — Petition for Removal — Record.</p> <p>The petition for removal of a cause from a state to the federal court is part of the record, and will be considered by the federal court in determining its jurisdiction.</p> <p>3. Same.</p> <p>When the petition for removal to the federal court and the bond are filed in the state court, the jurisdiction of the latter ceases, and of the former immediately at-, taches.</p> <p>4. Same — Courtesy to State Court.</p> <p>Where .the judge of the state court in vacation passes upon the petition for removal and bond, courtesy does not require the federal court to withhold action.</p> <p>5. Same — Comity.</p> <p>The question of comity between the federal and state courts does not arise on removal of a cause.</p>

<p>1. Removal of Causes — Amendment of Application.</p> <p>The case as made by the petition for removal and the pleadings at the time of the * removal is the test of the right to remove; and no amendment can be made in the circuit court, setting up grounds for removal which were not presented to the state court on the motion to remove.</p> <p>2. Federal Courts — Decisions of State Courts.</p> <p>The decision of the supreme court of the state that a particular corporation is a corporation of that state is binding on tbe federal court.</p> <p>3. Consolidation of Corporations — Citizenship.</p> <p>When a consolidated company is formed by the union of several corporations chartered by different states it is a citizen of each of the states which granted the charter to any one of its constituent companies, aDd when sued in one of these states it cannot claim the right of removal on the ground that it is also a citizen of another state.</p> <p>4. Same.</p> <p>A consolidated corporation which hears the same name in three states, and has one hoard of directors and the same share-holders, and operates the road as one entire line, and is designed to accomplish the same purposes, and exercises the same general corporate powers and functions in all the states, is not the same corporation in each state. While it is a unit, and acts as a whole, in the transaction of its corporate business, it is not a corporation at large, nor is it a joint corporation of the three states. Like all corporations, it must have a legal dwelling place, and it dwells In three states, and is a separate and single entity in each. It is, in effect, a corporate trinity, having no citizenship of its own distinct from its constituent members, but a citizenship indentieal with each.</p> <p>5. Hame — Contracts. ^ ,</p> <p>^ , Jn the conduct of its corporate business the Consolidated corporation acts as a unit, — as one corporation, and not three; and, in the absence oí a statutory provision to the contrary, it may transact its corporate business in one state for ail, and the contracts it enters into and the liabilities it incurs in ono state are binding upon it in all the states, and may be enforced against it in any one of them, when the action is transitory.</p> <p>6. Eminent Domain — Securing Right of Wat.</p> <p>The act of congress prescribing the mode in which a railroad company may secure the right ol' way through the public lands construed, and held that it is the duty of the railroad company, and not the contractor building the road, to do the things required by the act to secure the right of way.</p> <p>7. Corporations — Control of Corporate Peopertt.</p> <p>The owner of all the stock and bonds of a corporation does not own the corporate property. The corporate property, which includes all rights of action and claims for damages, belongs to the corporation, and is subject to the management and control of its board of directors. ,</p> <p>3. Removal of Causes — Jurisdiction—Federal Question.</p> <p>No federal question is raised in a case by an answer that is bad in substance without reference to the federal question.</p> <p>9. Same.</p> <p>A cause is not removable simply because in its progress it may become necessary to construe or apply an act of congress. Unless there is a dispute between the parties as to the meaning of the act, there is no federal controversy between them. The decision of the case, or some material issue in it, must depend upon a construction of the act claimed by one party and denied by the other. A simple averment that such is the fact is stating a conclusion, and is not sufficient; the facts that show it to be true must be set out.</p> <p>10. Same — Remand to State Court.</p> <p>When it is settled that the jurisdiction of the circuit court in a removal cause is doubtful, all doubt as to what the court should do is dispelled, and the cause will be remanded. This rule is in harmony with the spirit and design of the act of congress repealing the act which allowed an appeal or writ of error from an order remanding a cause.</p> <p> (Syllabus by the Court.) </p>

<p>On Petition for Removal.</p>

<p>In Equity. Demurrer to bill, for defect of parties.</p> <p>In September, 1889, Reuben W. Chadbourn, now deceased, filed his bill in equity in this court against Orlen P. Whitcomb and James N. Coe. After the death of Reuben W. Chadbourn the action was revived in the name of the complainants herein. The said Reuben W. Chadbourn was at the time of the filing of the bill, and the present complainants now are, residents and citizens of the state of Wisconsin. The defendant Coe is a resident and citizen of the state of Minnesota, and the said Orlen P. Whitcomb is a resident and citizen of the state of Colorado. Whitcomb filed a plea in abatement, alleging that he was at the time of the filing of said bill, and now is, a citizen of the state of Colorado, and alleging that this court had no jurisdiction over his person or the subject-matter. Said plea has been sustained by this court, and Whitcomb is out of the case.</p> <p>The bill alleges that Orlen P. Whitcomb is indebted to the complainants in a sum exceeding $5,000, exclusive of costs, and that the debt is evidenced by Whitcomb’s three promissory notes. No judgment has been obtained against Whitcomb. It is alleged that Whitcomb is insolvent, and has been so since 1875; that since about 1883 he has been a resident and citizen of the state of Colorado, and absent from the state of Minnesota; that complainants cannot procure a judgment against him in any action at law' in the courts of the state of Minnesota, or in the United States circuit court of said state of Minnesota, to collect said notes; that jurisdiction cannot be had by the service of process on Whit-comb in any action at law in said courts to collect said notes or to procure a judgment, thereon; that Whitcomb has no property in the state of Colorado, where; he resides, or in the state of Wisconsin, where the complainants reside, or in any other state or territory, as complainants are informed and believe, out of which the complainants can collect their debt, except the property described in the bill, which property, both personal and real, the complainants allege Whitcomb transferred to defendant Coe with intent to hinder and delay and defraud his creditors; that complainants are without remedy at law to collect the debt; that the property so transferred to Coe was of the value of several thousand dollars in excess of the incumbrances thereon; that the property was taken by Coe with intent to delay and defraud the creditors of said Whit-comb, and especially the complainants; that Coo paid no consideration for the property at the time of the conveyance, except a nominal amount of one dollar, and that he executed at the time of the conveyance of the property a certain secret trust agreement to Whitcomb, a copy of which is set forth in the bill; that the purpose of the transfer to Coe was to prevent the complainants and other creditors from collecting debts, and to enable the said Whitcomb to manage, control, dispose of, and handle said property for bis own use and benefit, free from claims of creditors, and particularly from these complainants; and that Whitcomb has, until about the year 1887, received the proceeds and crops from the real estate, and has sold a portion of the real estate; and that said trust agreement was never recorded. Said trust agreement, omitting the description of 1.he p roperty, is as follows;</p> <p>“Know all men by these presents that I, James Tv. Coe, of the city of Rochester, in the county of Olmsted anti state of Minnesota, for and in consideration of the conveyance to me by Orlen P. Whitcomb of said city of Rochester of the following described real estate situated in the county of-Oluisted and state of Minnesota, and known and designated as follows, to-wit, * * * do hereby covenant and, agree, for myself and my heirs to and witii the said Whitcomb, Ills heirs and assigns, to hoicj said premises in trust for the said Whitcomb for the following purposes, viz.: To convey said real estate, or any part or portion thereof, to such person or persons, and for such prices, as the said Whitcomb shall direct; and I hereby agree to make all such conveyances on request, and out of the proceeds of the sale of and for said real estate to pay to the creditors of said Whitcomb such proportion thereof as he shall direct, and to account to and with the said Whitcomb on demand, for and on account of all moneys or securities received on said sales, less any taxes or expenses incurred in the premises; and 1 further covenant that 1 will not convey said real estate, or any part thereof, except as requested by said Whitcomb; and in consideration of tho premises and one dollar to me in hand paid by said Whitcomb, the receipt whereof is hereby acknowledged, I hereby covenant and agree for myself and my heirs to and with the said Whitcomb, his heirs and assigns, to convey upon demand to said Whitcomb, his heirs or assigns, by good and sufficient deed, all of the real estate herein-before described, except such as shall have been conveyed by his re< u \st, upon being paid the expense of executing said deed, and upon being paid all taxes and expenses, if any, incurred in the premises. ”</p> <p>There is also an agreement set forth in the bill by which Orlen P. Whitcomb transfers to said defendant Coe his personal property, consisting of stock, farm implements, etc., with power of attorney to manage, control, sell, exchange, or dispose of the property as directed by said Whitcomb, and to account to the said Whitcomb therefor. This agreement was not recorded; and it is alleged that the deeds of conveyance to Coe and the agreement were made and accepted with intent to delay, hinder, and defraud Whitcomb’s creditors, especially the complainants, and to cover up and secrete the real and personal property of Whitcomb, and to prevent the creditors of Whitcomb from applying the same upon their debts. The defendant Coe demurs to said bill upon three grounds, as follows:</p> <p>“(1) That said bill of complaint does not, since the allowance of the said plea of the said Orlen P. Whitcomb, state or set forth such a ea*e as doth, or ought to, entitle the complainants to the relief thereby sought and prayed for from or against tills defendant. (2) That the said Orlen P. Whitcomb having been by the order of this court dismissed out of this suit, and no adjudication having been obtained agains't him that he is in any way indebted to the said complainant, no relief can be had against this defendant to discover or appropriate property in this defendant’s hands to the payment of any supposed claim against the said Orlen P. Whitcomb. (3) That the said Orlen P. Whitcomb, in the said bill of complaint named, is by the complainants’ own showing a proper and necessary party to any suit which may be brought against this defendant in tins court, touching any of the pretended matters of equity charged in said bill.”</p>

<p>1. Amendatory Act.</p> <p>Act Feb. 25,1889, (Sess. Laws, 75,) entitled “An act to amend section 3101 * * * of the Annotated Laws of Oregon, ” in which said section is set out as amended, is not in conflict with either section 20 or 22 of article 4 of the constitution of Oregon, as expounded hy the supreme court of the state in State v. Phenline, 16 Or. 107, 17 Pac. Rep. 572.</p> <p>2. Idem.</p> <p>Said section, as amended, not only makes an illegitimate child the heir of its. mother, hut legitimates it, so that it may inherit through its mother, provided the parents were “forjnally married, ’’ — married in form, — and “lived and cohabited as husband and wife;” although such marriage may be void in law.</p> <p>3. Deed, Delivery or.</p> <p>The delivery of a deed hy the grantor to a third person, to be given to the grantee at once, or on the happening of some future event, as his own death, is a good present delivery to the grantee, and vests in him the estate of the grantor; but it is otherwise if the grantor reserves to himself any future control over the deed.</p> <p>4. Interest in Subject-Matter oe Suit.</p> <p>The plaintiff having conveyed to another the “ undivided one-half ” of the property involved in this suit before the commencement of the same, and it appearing that she claims as the heir of her father, and that as such heir she could not be entitled to more than one such half, she is without interest in the subject-matter of the suit, and cannot maintain the same.</p> <p>5. Consideration in Deed.</p> <p>The consideration in a voluntary conveyance cannot be contradicted or disproved by one claiming under the grantor, by matter subsequent, as by descent, forthe purpose of impairing the effect or operation of the same.</p> <p>6. Case in Judgment. "</p> <p>Plaintiff in her bill alleged that her father, James B. Stephens, being old and incapable of transacting business, was induced by the defendants to convey all his properly to them, to the exclusion of the plaintiff, his lawful heir, and that said deeds were void for want of capacity in the grantor, and therefore ought to be set aside, and the plaintiff admitted to her inheritance. Found, that the plaintiff, years before her father’s death,'and continuously thereto, had so conducted herself as to incur his serious displeasure, and that such conveyances were made hy him after long and careful consideration, free from the influence, persuasion, or suggestion of any one, for the purpose of bestowing his property on the defendants, his relatives and friends, for reasons satisfactory to himself, and commendable generally, and to exclude the plaintiff from any benefit thereof; that at the time of signing said deeds Stephens was both mentally and physically capable of executing the same, and fully comprehended the nature and effect thereof, the details of which he had planned in his mind long before, and then and there duly delivered the same to a third person, for the grantees therein named.</p> <p> (Syllabus hy the Court.) </p>

<p>1. Pleadins — Character or Suit.</p> <p>The character of a suit is determined by the contents of the declaration or complaint, and not by the form of action adopted by the pleader.</p> <p>2. Same — Ex Contractu or ex Delicto.</p> <p>If the cause of action as stated in the declaration or complaint arises from a breach of promise, the action is ex emvtractu; if from a breach of duty growing out of the contract, it is ea; clclieto and case.</p> <p>3. Same.</p> <p>A declaration or complaint by a government contractor against his subcontractor for dredging, alleging damages to plaintiff’s channel revetment, caused by defendant’s not dumping the excavated material against this revetment, as agreed, is a suit for breach of contract, and not on the case.</p>

<p>1. United States Commissioners — Fees—Affidavits.</p> <p>United States commissioners are entitled to fees for drawing and filing affidavits upon which warrants are issued, where such affidavits are by the laws of the state necessary to the issuance of the warrants.</p> <p>3. Same — Entering Returns.</p> <p>They are also entitled to fees for entering returns on warrants and subpoenas, since such returns are necessary in order to ascertain what the deputy-marshals have done, and what fees they have earned.</p> <p>3. Same — Acknowledgments on Recognizances.</p> <p>They are also entitled to fees for taking acknowledgments on recognizances, since such acknowledgments are an essential part of the recognizances.</p>

<p>1. Taxation — Sale—Recitation in Peed — Validity.</p> <p>Under the charter oí Kansas City, c. 6, § 64, prescribing that a tax-deed shall recite that the property was publicly exposed for sale on a certain day “at the sale begun and ‘ publicly ’ held on the first Monday, • * * * the first day on which said real property was adven ised for sale, ” and requiring tax-deeds to comply substantially with the forms proscribed, a tax-deed is void which omits the word “publicly ” in the clause “at the sale begun and publicly held. ” Following Sullivan v. Donnell, 90 Mo. 378, 3 S. MV. Rep. 264.</p> <p>3. Same — Ejectment—Parol Evidence.</p> <p>In ejectment by the purchaser of the tax-deed, parol evidence to show that the sales were in fact begun on the first day advertised, and were “publicly” held, is incompetent.</p> <p>3. Same — Presumptions.</p> <p>The 1 ax-deed is not validated by section 65 of the above chapter, providing that “such tax-deed, executed substantially as prescribed in the preceding section,” (section 64,) shall bo conclusive as to the regularity of the proceedings.</p> <p>4. Same — Limitations.</p> <p>Section 66 of the same chapter, providing that proceedings to avoid the sale of property for taxes shall be commenced “within three years from the time of recording the tax-deed, and not thereafter, ” does not apply to a void deed.</p> <p>5. Same.</p> <p>Mor has it any application to a suit by the tax-sale purchaser against the owner.</p>

<p>1. Intoxicating Liquors — Transporting through Indian Country.</p> <p>Transporting ardent spirits as an article ol commerce through an Indian country, between places outside the same, is not a violation ol Rev. St. U. S. I 2199, which provides that “no ardent spirits shall be introduced, under any pretense, into the Indian country. ”</p> <p>2. Same — Seizure—Pleading.</p> <p>In a libel to forfeit whisky alleged to have been introduced into an Indian country, a plea that claimant did not unlawfully introduce said whisky into any Indian country, and that he did not introduce it intending to sell or dispose ol' it to any Indian, is bad, since the first allegation is a conclusion of law,"and the second is irrelevant.</p> <p>8. Same.</p> <p>A plea that the whisky when seized was in the claimant’s possession, and that he was then on his road from a town named to another town not named, neither of such towns being within any Indian country, is also bad, since it does not show that the whisky was in transit when seized, or that the unnamed town was oil the reservation.</p>

<p>Customs Duties — Lumbeb in Bond — Appbaisal op Duty.</p> <p>By Act Cong. Oct. 1, 1890, it was provided, that the duty on lumber imported should be reduced from two dollars to one dollar per M., but that, if any country should impose an export duty on logs for this country, the duty on lumber should remain as before. The export duty on logs from Canada was removed October 13th. The lumber in question was imported September 27th, and deposited in bond. It was not withdrawn until October 10th. Held, that under the provision of section 54, that merchandise deposited in bond may be withdrawn within three years from the date of the original importation upon the payment of the duties and charges to which it may be subject by law at the time of its withdrawal, it should have been assessed only one dollar per thousand.</p>

At Law. The defendants were indicted for the murder of one John Dansby, a colored man. The government charged that the defendants, together with another party, committed the crime of murder, by killing Dansby while they were attempting to rob him. After the evidence was all heard, ■and the argument of counsel had closed, the court charged the jury, and .afterwards they returned a verdict of murder.

<p>,1. Conspiracy — To Deprive op Rights Held under the Constitution and Laws op !' the United States. ,,</p> <p>When a citizen, of the United States is committed to the custody of the United States marshal or to a state jail by process issuing- from one of the courts of the ' ' United-States, to be held, in default of bail, to await his trial, on a criminal charge, within-the exclusive jurisdiction of the national courts, such citizen has a right, under the constitution and laws of the United States, to a speedy and public trial by an -impartial jury, and, until tried or discharged by due process of law, has a right under said constitution and laws to be treated with humanity, and to be protected against all unlawful violence, while he is deprived of the ordinary means of defending and protecting himself.</p> <p>2. Murder — Committed in the Prosecution op Such Conspiracy — Jurisdiction.</p> <p>Persons who conspire to deprive citizens of such rights are offenders under Rev. St. ti. S.’ § 5508, and if in the commission of such offeuse' murder is committed by them, are liable to be tried and punished in the United States courts for such mur- ,- der under Rev. St. U. S. § 5509.</p> <p>8. Conspiracy — Acts and Declarations op Co-Conspirator.</p> <p>Each co-conspirator is liable for the acts and bound by the declarations of bis co-’conspirators, done or said during the continuance of the conspiracy, touching its object and conduct; and it is immaterial at what time he joined the conspiracy, or whether he was actually present when the particular acts were committed.</p> <p>i. Same — Evidence—Accomplice.</p> <p>! A conviction for conspiracy cannot he had on the uncorroborated testimony of a co-conspirator, nor can co-conspirators corroborate each other.</p> <p>5. Same.</p> <p>The fact that members of a conspiracy to offer violence to prisoners under arrest are in charge of them as deputy-marshals or guard does not lessen their guilt.</p> <p>Witness — Convicted op Xnpamous Crime. ></p> <p>Persons.convicted and punished for an infamous offense in the state courts are •! bompeteht witnesses in the-United States courts, their credibility being a question for the jury. ;</p> <p>¡7. Reasonable Doubt.</p> <p>Jurors' are not at liberty to doubt as juroi’S if they would believe as men.</p>

<p>Patents foe Inventions — Infringement—Injunction—When Denied.</p> <p>A preliminary injunction will not be granted pendente Ute to restrain an electric light- company, which is extensively engaged in the business of lighting the streets and other public and private places in a large city, from using certain patented ] amps, when it appears that complainant is insolvent, without any p lant or property of any sort, and unable itself to conduct the business of lighting, so that the injunction would greatly inconvenience the public, and seriously injure defendant, which would have to lake out the lamps and substitute others, not so well adapted to the purpose, while it would be of no benefit to complainant, which is protected by defendant's ability to respond in damages should the infringement be established at the final hearing.</p>

In Admiralty. Libel in personam. Libel for the balance of freight unpaid, and for demurrage, under the terms of a charter-party. It states the shipment of cargo — fish scrap — • at Nantuc, Conn., on voyage to Charleston, the arrival at the port, and the due delivery of cargo to respondents at their wharf, and its acceptance by them, the payment of a part of the freight money duo by respondents, and that a balance of $289.08 has not been paid.

<p>Admiralty — Libel m Rem — Stevedore's Services.</p> <p>The services of a stevedore in loading a vessel are maritime in their nature, for which, when rendered in a foreign port, a libelinremwill lie. Hollowing The Gilbert Knapp, 37 Hed. Rep. 209.</p>

<p>Carriers — Discharge oe Cargo — Improper Dock — Loss op Vessel.</p> <p>A coal-boat, while lying at a wharf under which a sewer discharged, was sunk at the w-harf by an unusual discharge from the sewer, due to a heavy shower. Libelant insured the sellers and shippers of the cargo, and, on an abandonment by them, paid the loss, and brought this suit to recover damages against the carrier for negligence in going to an improper dock. The title to the coal had passed to the consignee before the accident. The consignee sent the vessel to the wharf, accepted part of the cargo, and made no objection to her lying there. When the shower came on the master was unable to get away, owing to the presence of other vessels. Selll that, under such circumstances, no action for going to the dock could be maintained against the boat by either the shipper or consignee, and none, therefore, could he maintained by the insurer.</p>

<p>In Admiralty. Suit to recover salvage.</p>

<p>In Admiralty. Suit to recover salvage.</p>

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

<p>Collision — Vessels Meetino nsr Hell Gams — Signals—Supervisors’ Rule 3.</p> <p>A schooner in tow of the tug A. was going east through Hell Gate. As the tow rounded Hallelt’s point, it was gradually overtaken and passed by a largo Sound steamer, which was near the south shore. Another tug was also in the neighborhood, near the north shore. In tho vicinity oC Negro point, tho steam lighter J. ,B. was met. As the Sound steamer passed the A., sho gave one whistle, to Indicate to the A. that sho was passing. This signal was answered by the A., and then by the lighter. No other signals wore given by any of the vessels. The A. expected the lighter to go to the right. Instead, she attempted to pass between tho tow and the Sound steamer, which she claimod was tho only thing she could do under tho circumstances. Tho lighter collided with tho tow of the A. Hold, tha1 in that part of the river, dangerous from its windings, sunken rocks, and cross-currents, vessels must reasonably comply with the supervisors’ rule which requires them to signal when approaching within half a mile of each other, to insure a common understanding. For their failure to so signal, both the lighter and the A. wore hold in fault.</p>