Volume 46 — Federal Reporter

<p>1. Federal Courts — Criminal Jurisdiction — Great Lakes.</p> <p>under Act Cong. Sept. 4,1890, extending the criminal Jurisdiction of the federal courts to offenses committed upon any vessel registered or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the G reat Lakes, ” “ or any of the waters connecting any of the said lakes, ” such courts have no Jurisdiction of a larceny committed upon a steam-barge while lying in the Menominee river, a tributary of Lake Michigan, half a mile from its mouth.</p> <p>3. Same — Bringing Stolen Property within the Jurisdiction.</p> <p>The United States courts have no common-law Jurisdiction in criminal matters, and can only take such jurisdiction as is given them by statute; and the fact that, though the larceny was committed within the limits of a state, the stolen property was not discovered in defendant’s possession until the vessel was upon Lake Michigan, will not aid their jurisdiction.</p>

<p>At Law.</p> <p>Fales v. Railroad, Co., 32 Fed. Bep. 673; Booth v. Manufacturing Co., 40 Fed. Rep. 1; Purcell v. Land, etc., Co., 42 Fed. Bep. 465; Henning v. Telegraph Co., 43 Fed. Bep. 97; Myers v. Murray, Id. 695; and National Typographical Co. v. New Torh, etc., Co., 44 Fed. Bep. 711.</p>

<p>Receiver — Corporations—Assignment por Benefit op Creditors.</p> <p>An assignment for the benefit of creditors, made by a corporation after service of process on it in a suit by a creditor for the appointment of a receiver, does not deprive the court of jurisdiction to appoint such receiver.</p>

<p>Injunction — To Restrain Action at Law — Ejectment.</p> <p>A second action oí ejectment, involving the same issues of fact as those decided against the plaintiff in the first action, is not vexatious litigation, which will be enjoined by a court of equity, where the statutes of the state where the land lies allow a defeated party in ejectment to bring a second action.</p>

<p>Assignment fok Benefit of Ckeditoks — Actions ky Assignee — Parties.</p> <p>A non-resident partnership owned lands in Illinois, which it placed in charge of an agent, nnder an agreement that his compensation should be one-half of the net profits realized on a sale of the land. Subsequently the partnership made a voluntary assignment for the benefit of creditors; and its resident creditors, including the agent, after learning of this fact, attached tho land. Held, that such attachments, being by resident creditors, were valid as against the assignee, who claimed under non-resiuent debtors; and that tho attaching creditors, other than tho agent, were not proper parties to an action brought by the assignee to have the title to the land judicially vested in him, and to compel an accounting by the agent.</p>

<p>L Corporation — Stockholders’ Liability — Payment of Stock in Property — Overvaluation.</p> <p>A bill by a judgment creditor of a corporation, which charges that defendants are the stockholders and directors of the company; that the stock therein of $125,-000 was paid by the conveyance of a lot and building suitable for its business, at a valuation of $200,000, though it was at no time worth more than $157,000; that the bonds of the company secured by mortgage on the building were issued to defendants to make up the deficit; that defendants were at the time stockholders and directors in the real estate company which owned the building and lot and made the conveyance, and were personally aware of the overvaluation, and benefited by it, — sufficiently charges fraud, although no actual fraud is alleged, and a demurrer thereto will be overruled.</p> <p>2. Same — Notice.</p> <p>Nor is it a valid ground of objection that the bill fails to charge that complainant became a creditor of the company in ignorance of the way in which its stock was floated as paid up, for knowledge of such facts on its part is a matter of defense, to be pleaded by way of answer.</p>

<p>• In Equity.</p> <p>The intervenor, as trustee of mortgages upon what was known as the “Indianapolis, Peru & Chicago Railroad,” extending from Indianapolis to Michigan City, claims compensation for the use of that road and its equipment by the receivers herein. The demand is made in the alternative, either for the net earnings of the road while in the possession of the receivers, or for the amount which under the contracts of June 1, 1881, the Wabash Company, if it had remained in control, would have been bound to pay for the use during the same period of time. The net earnings the master has reported at $261,906.70, the rental under the contracts at $226,053.65, and, following the decision in Brown v. Railroad Co., 35 Fed. Rep. 444, has recommended that the latter sum be allowed. Numerous objections are made to the report, but the principal question is one of priority of right or of lien upon the property which must -be charged with the payment of the claim, if payment should be ordered. There is no fund out of which direct payment can be made, but by the terms of the decree entered at St. Louis on January 6,1885, -foreclosing the general mortgage upon the Wabash road, by virtue of which decree the road was sold, the court reserved the power to resume possession and to order a resale of the property, if necessary, for the discharge of liabilities or claims entitled to preference over mortgage indebtedness; and the question is whether or not this claim is of that character. By the two contracts of J une 1,1881, one of which was made by the Indianapolis, Peru & Chicago Railroad Company and the other by the Michigan City & Indianapolis Company, the roads composing the Indianapolis, Peru & Chicago road, with appurtenances and equipment, were leased to the Wabash, St. Louis & Pacific Railway Company for the term of forty years. Included in the contract of the Indianapolis, Peru & Chicago Company was that part of the road between Peru and La Porte, owned by the Chicago, Cincinnati & Louisville Company, and of which the Indianapolis, Peru & Chicago Company had possession under a contract dated November 15, 1872, subject to a mortgage for $1,000,000, executed January 1, 1867, to George T. M. Davis, trustee. The Indianapolis, Peru & Chicago road proper, extending from Indianapolis to Peru, was also -subject to a mortgage for $275,000. In consideration of the execution of these leases, the Wabash Company, besides assumingallliabilitiesof thelessor companies, executed its negotiable forty-year bonds, bearing six per cent, annual interest, payable semi-annually, to the Indianapolis, Peru & Chicago Company for $1,350,000, and to the Michigan City & Indianapolis Company for $325,000; and, to secure the payment of the bonds delivered to it, each of those companies executed a mortgage or trust-deed of its road to Abram W. Hendricks and the intervenor^ as trustees. In those deeds, and also in the contracts of lease, it was provided that for any default of the Wabash Company, continued for ninety days, to pay interest due upon its bonds, the trustees or lessors -might re-enter and repossess the leased roads and rolling stock. The Wabash Company gave no security for the performance of its covenants, or for the payment of principal or interest of its bonds, though its entire tangible property was at the time subject to the general mortgage of June 1, 1880, made to secure an issue of bonds for $50,000,000, of which issue bonds to the amount of $17,000,000 had been executed and were outstanding, and the lines of road on the east side of the Mississippi river were also under the mortgages of 1867 and 1879 for large amounts. By .an agreement between William Cutting, as executor of the will of Francis P. Cutting, and Solon Humphreys, as president of the Wabash Company, which, though bearing a later date, seems to have been made before the contracts of lease, Cutting, undertook to procure the execution of those contracts by the railroad companies, and to cause the capital stock of those companies, excepting the shares necessary to keep the organizations alive, to be deposited with Swayne and Hendricks, trustees, for certain specified uses during the term of the lease, and stipulated that at the end of that term the stock should become the absolute property of the Wabash Company, if meanwhile it had performed its covenants and paid the interest upon its bonds. Under the contracts so made, the Indianapolis, Peru & Chicago road became and continued to be a part of the Wabash system until May 29, 1884, when, upon the petition of the Wabash Company, avowing its own insolvency and inability, without the aid of the court, to retain control of leased lines and keep the system intact, the United States circuit court sitting at St. Louis appointed Messrs. Humph-reys and Tutt receivers, and put them in possession. Two days later, on June 1st, the company made default in the payment of interest upon its bonded indebtedness, including that of which the intervenor was trustee, and within a low days thereafter the Central Trust Company and James E. Cheney, trustees, filed a cross-bill in the case for the foreclosure of the general mortgage, in which they prayed for the appointment of a receiver in the interests of their trust; but the application, though renewed in October and November of the same year, was in each instance denied. Afterwards the trustees filed original bills for the foreclosure of the general mortgage in the courts of the states in which the different lines of the system were situate, and upon removal of the suits to the United States courts, where a consolidation with the original suit of the Wabash Company was soon ordered, the trustees made application to have receivers appointed, or for an extension of the existing receivership to the general mortgage, and this application was also denied. Pending these proceedings, Wager Swayne and Abram W. Hendricks were parties to the suit, as trustees, and had entered their appearance. Wager Swayne was also counsel for the Wabash, St. Louis & Pacific Railway Company, and presented the bill upon which Messrs. Humphreys and Tutt were appointed receivers. George T. M. Davis, trustee of the Chicago, Cincinnati & Louisville mortgage, was also a party to the suit, and had entered his appearance therein. The consolidated cause for foreclosure of the general mortgage, at St. Louis, went to decree in January, 1886; and the lines of railway composing the Wabash system, excepting such of them as had been surrendered by the receivers to trustees and others by order of the court, were sold to a committee of general mortgage bondholders in April, 1886, which sale was confirmed, and the receivers were ordered to deliver the property to the purchasers. Before delivery the receivers were removed from the possession of the lines east of the Mississippi river, and another receiver was appointed for those lines by the United States circuit court for the southern district of Illinois, who took possession on Januarj^ 1, 1887. The lines on the east side of the river were sold afterwards upon a decree rendered in the seventh circuit, foreclosing the mortgages of 1867 and 1879, and were purchased by the same committee which purchased under the decree at St. Louis. This sale was also subject to a reserved power of the court to retake possession, if necessary, to enforce payment of claims or liabilities entitled to preference over the mortgage debts. While the decree foreclosing the general mortgage declared that the lien of that mortgage attached to leased lines “ to the extent of the interest of the Wabash Company therein,” it excepted the Indianapolis, Peru & Chicago and some other lines from the order of sale. The order of court appointing Humphreys and Tutt receivers, besides directing the payment of rentals and other claims out of the income which should come to their hands, contained the following, viz.: “That such receivers keep such accounts as may be necessary to show the sources from which^all such income and moneys shall be derived, with reference to the interest of all parties herein, and the expenditures made by them.” And on June 28,1884, the court directed the receivers to keep accounts of all the earnings and income from, as well as of all the operating expenses and cost of maintenance and taxes of, certain, named lines or divisions, including the Indianapolis, Peru & Chicago road: “and make quarterly reports thereof, showing not only the income and expenses of each of the lines aforesaid, but also the methods by which the incomes and expenses of the lines were respectively ascertained.” Reports were made accordingly, which showed a net income from the Indianapolis, Peru & Chicago lines, while in the hands of the receivers, of $100,-760.70; and, no exceptions having been filed, the reports were confirmed by an order of court entered on the 10th day of October, 1887. On April 16, 1885, an opinion and order was rendered and entered by Circuit Judge Brewer, (23 Fed. Rep. 865,) containing the following:</p> <p>“Subd¡visional accounts must be kept separately, * * * in order that the particular equities of e;uh one of these divisions, as between themselves, may be ascertained. When any subdivision earns a surplus over expenses, the rental or subdivisional interest will be paid to the extent oí the surplus. * * * Any net earnings should be paid over to the lessor, or, if there be a subdivisional "mortgage, to the mortgagee. There will bo no modilication of the order heretofore entered concerning receivers’ certificates, but all equities respecting them, as between various subdivisions, will be adjusted in the final decree. * * * When it comes to a sale of the road or other final disposi-. tion of the matter, it may be there will be such equities as will justify the casting the burden of these certificates upon one division rather than another.”</p> <p>On the 28d of October, 1885, in obedience to an order of the court made at the instance oí'the intervenor, the receivers surrendered to him the road in question, and its equipment, except that portion covered by the mortgage to Davis, trustee, which under a like order had been surrendered to him on the preceding 8th of Juno. The orders of the court, in addition to the surrender of possession by the receivers, authorized Davis and Swayne, as trustees, to prosecute suits in this court for the foreclosure of their respective mortgages, and directed the receivers to appear here, and present for adjudication any demand they had as receivers against the Indianapolis, Peru & Chicago road, or its subdivisions, for operating expenses, or on account of receivers’ certificates issued under orders of the court for liabilities antedating the appointment of receivers; and also to appear to, answer, and litigate to final adjudication any claims, by way of set-off or counter-claim, against them, growing out of and properly connected with any such claims presented by them as receivers. Accordingly, upon cross-bills filed here in the consolidated cause, Swayne and Davis, as trustees, procured decrees foreclosing their respective mortgages, under which the several properties were sold in 188(5, and passed into the possession of the Lake Erie & Western Kail-way Company, which still owns them. The issues joined between the parties, in respect to the matters now in dispute, need not be more particularly stated.</p>

<p>Taxation of Costs — Printing Briefs.</p> <p>Disbursements for printing a necessary and proper brief in an equity eause should be taxed in the costs, though it may not have been printed before commencement of the argument.</p>

<p>Equity — Practice—Evidence—Record—Appeal.</p> <p>In an equity suit testimony that is ruled out on objection will not be excluded from the record on appeal.</p>

At Law. The plaintiff by his office boy sent to the defendant’s agent at Columbus the following telegraphic message, written upon one of the blanks of the company used in sending night messages, to-wit: “Columbus, Miss., Feb. 20, 1890. "ToMessrs.

<p>Insukance — Proof of Loss — Appraisement—Demand.</p> <p>A policy of insurance issued by defendant to plaintiff provided that any loss should be appraised as prescribed by the policy, and that the report of the appraisers should form part of the proof required by the policy. The proof of loss furnished the company did not contain such a report of appraisement, but the letter accompanying the proof stated that, if there were any defects in the substance or form of the proof, plaintiff, upon being advised thereof, would perfect the same. No objection was made at anytime to the form or substance. Several other companies, some of Which were not entitled to demand such an appraisement, had policies on the same property; and in the course of a correspondence carried on by them and defendant jointly on the one side and plaintiff on the other, in which they disputed the amount of the loss, they demanded a.submission to arbitration on conditions which were refused by plaintiff. They then, by joipt letter, stated that, if the form of submission proposed by them contained any provisions "not prescribed by the policies, each company would submit its own form. There was no further correspondence betwen them jointly, or between defendant and plaintiff, on the subject. Held, that the joint demand could not take the place of a separate demand, and defendant had therefore waived its right to have such appraisement made part of its proof of loss.</p>

<p>1. Forei&n Corporation — Citizen op Another State.</p> <p>A corporation becomes a domestic corporation of a state either by a creation of or adoption by such state. A corporation of one state may be made, by appropriate legislation, a citizen of another state. Whenever the effect of stato'legislation is to adopt a foreign corporation as one of its own, it becomes a citizen as well of the state adopting it as of that to which it owes its original character.</p> <p>2. Same — Domestic Corporations.</p> <p>As to whether a state has adopted, and thus domesticated, a foreign corporation, is purely a question of legislative intent. When the legislature of Arkansas provided that every railroad corporation of any other state which has heretofore leased or purchased any railroad in this state shall, within 60 days from the passage of this act, file a duly-certified copy of its articles of incorporation or charter with the secretary of state of this state, and shall thereupon become a corporation of this state, it evinces by the language used a clear purpose to make such corporation a domestic one, and, when such articles of incorporation or charter are filed with the secretary of state, such foreign corporation becomes a corporation of the state.</p> <p> (,Syllabus by the Cowrt.) </p>

<p>Costs — Taxation—Attorney’s Fees.</p> <p>Where several suits by the same firm against different insurance companies, to recover for a fire loss, are by agreement submitted to referees to fix the value of the property destroyed, and' to render a final award, and the referees give judgment against the insurance companies for a certain amount and costs, it is proper to allow as costs an attorney’s fee of $30 in each of the original cases, under the statute allowing such fees to be taxed in each case tried by a jury or submitted to referees.</p>

<p>1. Habeas Corpus — Jurisdiction.</p> <p>When it is alleged in a petition for a writ of habeas corpus that by the action of a judge of a police court of a city a person has been deprived of his liberty without due process of law, and consequently against the constitution and laws of the United States, the federal court, or judge thereof, has jurisdiction to issue a writ of habeas corpus.</p> <p>t. Same — Due Process op Law.</p> <p>A person is deprived of his liberty without due process of law when he is restrained of it by virtue of an order or judgment or commitment made or issued by a police judge of a city or town without legal authority, or beyond his jurisdiction to make or issue the same.</p> <p>8. Contempt — Power to Punish.</p> <p>A court of a justice of the peace, or a court of a police judge of a city or town, has, as a necessary, incident to its existence, the power to punish for such contempts committed in its presence as have a tendency to produce disorder that may prevent and interrupt the orderly proceedings of such court. Such courts also have the incidental powers to punish executive officers of their courts for disobedience of, or refusal or failure to obey or execute, lawful process issued by them. Such powers belong to them because necessary to their very existence, and to enable them to perform their duties as such courts.</p> <p>4. Same — Power of Police Judge.</p> <p>The police judge of the city of Ft. Smith has the power, by virtue of the statutes of the state, to punish for contempt in the cases above named; but to authorize it, either under its statutory or incidental power, to punish an officer for failing or refusing to execute a process of commitment issued by it, such process must be legal.</p> <p>5. Pardon — Violation op Cut Ordinance.</p> <p>The mayor of the city of Ft. Smith has the right, under the ordinance of the city, to pardon a person for a violation of a city ordinance when certain conditions exist. One of these is that the physical condition of a person is such that a confinement would endanger the life of such person. Under this authority to pardon, the mayor is the sole judge of the existence of the condition which gives him the right to pardon. Unless he acts corruptly, his action is final. In the absence of any showing to the contrary, the court will presume the mayor acted in good faith.</p> <p>6. Same — Effect.</p> <p>The pardon of the mayor destroys the offense of which a party is convicted, and the police judge cannot in such case order a person committed, and a police officer may legally disobey a commitment issued in such case by the police judge without being in contempt of the police court.</p>

<p>Concealed Weapons — Deputy-Marshal in Disohaboe op his Duty.</p> <p>Petitioner, a United States deputy-marshal in Tennessee, while in the town of Corinth, just across the line in Mississippi, learned that one B., for whose arrest he had a warrant, was at another point on the railroad. Being without arms, and knowing the reputation of the accused as a dangerous character, he borrowed a pistol, and belted it on under his overcoat. While waiting for the train, he learned that the accused had returned to that neighborhood, and determined to immediately go in search of him. During the evening, after he had abandoned the idea of going on the train, he was arrested in Corinth, on the charge of carrying concealed weapons, but action was deferred upon the presentation of his commission as a deputy-marshal and the warrant which he had to execute, and he was released. He immediately went in search of the accused, but stopped over night at his own house, and started again at daylight, and continued his search that day, making the arrest upon the day after. Subsequently he was again arrested for the same offense, brought before the mayor, who fined him, and that judgment was sustained by the state circuit court on appeal. Meld, on a petition for habeas corpus, that he was an officer of the United States in the regular discharge of his duty, notwithstanding his stop for a night’s rest at his own home, and was entitled as such to be armed, and that he must be discharged.</p>

<p>1. Indictment — Finding—Motion to Quash.</p> <p>The fact that the grand jury, after voting not to find an indictment, but, before reporting to the court, reconsidered their decision, and voted to find one without hearing any new evidence, is no ground for quashing the indictment.</p> <p>2. Same — Stenographer in ©band Juet Room.</p> <p>The fact that a stenographer who was in the employ of the district attorney at the latter’s request attended before the grand jury, and took notes of the testimony of a witness, is no ground for quashing an indictment, as such stenographer was an assistant to the district attorney.</p>

<p>Bill op Exceptions — Waives—Criminal Law.</p> <p>Where the defendant in a criminal case presents to the judge minutes of the trial, in which some oí his exceptions are omitted, and the same is signed by the judge, and used in moving for arrest of judgment and for a new trial,_ no further bill of exceptions should be given after issuance of a writ of error, since the defendant has thereby waived the exceptions omitted from the minutes.</p>

<p>Patents eob Inventions — Injunction—Equity Pleading.</p> <p>Where no preliminary injunction is asked for, a bill to enjoin the infringement of a patent need not show that the complainant is engaged in making or selling the articles described in his patent, that such patent has been a source of profit to him, or that the validity of the patent has been established by prior adjudication or by public acquiescence.</p>

<p>1. Equity Pleading — Infringement oe Patents — Multifariousness.</p> <p>A bill which claims relief because of an alleged interference between the patents of the complainant and the defendant, and also because of defendant’s alleged infringement of complainant’s patent, is not multifarious.</p> <p>3. Same — Interference of Patents.</p> <p>Allegations that complainant obtained acertain patent; that defendant obtained certain patents of a later date, which interfere with complainant’s rights under his patent; that defendant is making and selling machines under his patents, and has in other ways disturbed complainant in the use and enjoyment of the rights granted by his patent, — sufficiently charge interference.</p> <p>3. Same — Immaterial Allegation — Exception.</p> <p>Objection to an immaterial allegation in a bill should be taken by exception, and not by demurrer.</p>

<p>Patents foe Invention — Infringement — Petition to be Admitted as Party He FEND ant.</p> <p>In a suit for the infringement of letters patent, the petition of a third party to he permitted to defend, which alleges that petitioner makes and sells certain machines which he is informed and believes complainant claims to be an infringement of the patent sued on, and that if successful in that case complainant intends to sue the petitioner for infringement, and that petitioner is advised and believes that there is no infringement, but which fails to aver that petitioner’s machines are Identical with those made by defendant, or to show any privity with the latter, would, if granted, have the effect of rendering the proceeding multifarious by including in one action different infringements of one patent by different persons and different machines, and must be denied.</p>

<p>Patents fob Inventions — Infringement.</p> <p>Letters patent No. 6,739, granted November 16, 1875, to James Foley, for an Improvement in waste valves and overflows for basins and baths, which consists in bringing np the stand-pipe or onter pipe of the overflow through the casing or slab contiguous to the basin or bath-tub, and securely attaching it, preferably by a screw connection, to a removable cap resting upon the outside of the casing or slab, are not infringed by the device made under letters patent No. 170,709, to William S. Carr, and No. 358,147, to John Demarest, by which the stand-pipe is provided with a screw flange resting upon the top of the slab, but has no cap covering its upper end, as in the prior patent.</p>

<p>Patents fob Intentions — Electric Lamps — Infringement.</p> <p>Letters patent No. 219,308, issued September 2,1879, to Charles F. Brush for an improvement in electric lamps, are valid, and cover all forms of mechanism constructed to separate two or more pairs or sets of carbons dissimultaneously or successively, so that the light is established between the members of but one pair or set at a time. Following Brush Electric Co. v. Western Electric Light, etc., Co., 43 Fed. Rep. 583, and Same v. Ft Wayne Electric Co., 44 Fed. Rep. 884.</p>

<p>1. Salvage — Amount.</p> <p>Where a steel propeller, which is thoroughly equipped with all the modern appliances for extinguishing fires, saves in the day-time, and with little danger to herself or crew, a barge worth about@4,000, after about five hours’ labor, and then tows the barge into port, without deviating from her course, an allowance of 81,000 for salvage is sufficient.</p> <p>8. Same — Apportionment.</p> <p>In such case the salvage will be divided as follows: To the owners, $325; to the master, §90; to the first mate, §50; to the chief engineer, who took an active part in the work, 850; to the second mate, 840; to the second engineer, §25; and the balance, of $420, equally among the rest of the crew, their services being nearly equal.</p>

<p>1. Removal op Causes — Citizenship—Petition.</p> <p>Under the removal act of 1887, (24 St. U. S. 552,) which' provides that certain actions may he removed from the state to the federal courts, “by the defendant or defendants therein, being non-residents of that state, ” a removal cannot be had unless the petition shows on its face that the defendant was a non-resident when the action was begun.</p> <p>3. Same — Motion to Remand — Affidavits.</p> <p>On motion to remand, defects in the petition for removal cannot be supplied by affidavits.</p>

<p>t. Removal of Causes — Federal Question — Interstate Commerce Law.</p> <p>An action against an interstate common carrier by rail for damages caused by unjust discrimination in rauss and charges against plaintiff as a shipper over its road, and in affording other shippers better facilities, and for unlawfully demanding and receiving extortionate rates from plaintiff, is an action arising under the interstate commerce act, though not in express terms based on that act, and, though an action would lie for the same cause at common law, is removable under Act Cong. March 8, 1887, when the petition for removal sets up defenses based on the interstate commerce act.</p> <p>0. Same.</p> <p>The plaintiff may be content to rest his case on the common-law liability of common carriers, but ho cannot theroby deprive the defendant, as a carrier of interstate commerce, of any defense it has under the interstate commerce act. A case arises under a law of the United States, whenever that law is the basis of the right or privilege, or claim or protection, or defense, of the pai’ty, in whole or in part, by whom it is set up. It is enough that there is a federal question in the case, whether it is relied on by the plaintiff or the defendant.</p> <p>8. Syme — Review.</p> <p>On a motion to remand, the court will not anticipate the trial of the case by construing the act of congress and determining the rights of the parties thereunder. It cannot eliminate the federal question from the case by a premature decision of it, and then remand the suit upon the theory that it no longer involves a federal question.</p>

<p>Equity Jurisdiction — Remedy at Law.</p> <p>A suit in equity for discovery and accounting will not lie upon a contract to pay complainant commissions on certain sales the amounts of which are unknown to the complainant, since he has a plain, adequate, and complete remedy at law.</p>

<p>Dismissal or Bill — Answer Piled.</p> <p>A complainant is not entitled as of right to dismiss his bill after the answer is filed, setting up that the license to uso a patent upon which the suit is brought is fraudulent and void, and showing that defendant is entitled to a decree for its cancellation.</p>

<p>1. Costs — Attorney's Fees on Depositions.</p> <p>On taxation of costs in an equity cause in the federal court the fee of $2.50 on each deposition taken and admitted in evidence on the hearing before the court is taxable under section 824, Rev. St., in favor of the party recovering costs; and it is immaterial before what officer such deposition was taken, whether examiner, master, or otherwise.</p> <p>2. Same — Printed Record.</p> <p>Where the record is printed in the circuit court, and paid for by a receiver under order of the court from funds in his hands, and such printed record is used on appeal in the supreme court without further expense to the parties, held, under the circumstances of this case, that the expense of printing the record should be taxed in favor of the party recovering costs.</p> <p>3. Same — Receiver’s Compensation.</p> <p>Where a receiver is appointed at the instance of the plaintiff, and the ultimate decision of the case upon appeal, reversing the decree below, is adverse to him, the receiver’s commissions, paid out of the funds in his hands, will not be taxed as costs against the plaintiff, his appointment being regular and properly made in the case. That the plaiutiff does not finally succeed in the litigation is not the criterion in determining the propriety, necessity, or legality of a receiver’s appointment.</p>

<p>Public Land — Contested Entby — Injunction.</p> <p>Where the complainant claims ownership of land by mesne conveyances from one who originally entered it, and to whom the register and receiver of the land-office executed a receipt and certificate of purchase, and more than seven jmars afterwards the land was entered as a timber claim, and the register and receiver, having permitted this second application to be filed, propose to permit a contest, and have notified complainant to show cause why the first entry should not be canceled, an injunction will not be granted to restrain such contest, in the absence of any evidence of an intent to act unfairly or unlawfully.</p>

<p>Railroad Mortgage — Foreclosure—Priorities—Supply Liens.</p> <p>A dept created for materials for original construction of a portion of a railroad more than six months before the appointment of a receiver in proceedings for the foreclosure of a mortgage is not within the rule authorizing the court to provide for arrears due for operating expenses of the road out of the net income of the property, and in the absence of a showing that there had been a diversion of current funds or income which should have been applied to the payment of the claim for such materials, will not he given a priority over the rights of the mortgage creditors.</p>

<p>Discovery — Practice—Examination or Flaintiit.</p> <p>A plaintiff may, in an action at law in a federal court, obtain an order for the examination of the defendant, to enable the plaintiff to frame his complaint, where such an order is provided for by the state Code of Procedure.</p>

<p>Patents you Inventions — License—Royalties—Fraud.</p> <p>Where the patentee of a hat-sweat appliance induces a hat manufacturing company to accept a license to use the patent under representations that other hat manufacturers are paying the schedule rates for royalties, when in fact they are only paying one-half of those rates, the company so imposed upon is not liable for the, royalties agreed to be paid, and may have the license canceled.</p>

<p>iNtAINGEMENT OP PATENTS — LACHES.</p> <p>An unexplained delay of seven and a half years in bringing suit for infringement of a patent will deprive complainants of the right to a preliminary injunction, and perhaps to an account; but, inasmuch as it would be inequitable to allow infringement to continue in the future, a court of equity will entertain jurisdiction to grant an injunction notwithstanding such laches.</p>

<p>1. Patents eok Intentions — Anticipation.</p> <p>Letters patent No. 334,013, issued to Connolly Becember 7, 1886, No. 247,472, issued to Beiersdorf & Bunker September 27,1881, No. 313,429, issued to KennaMarch 8, 1883, No. 334,102, issued to Bunker January 12, 1886, No. 334,345, issued to Bunker January 12,1886, and No. 273,630, issued to Stevens March 6,1883, the principal feature of each of which is the use of spiral or coil springs to connect the base and rocking part of a platform rocking-chair, located at opposite sides of the chair center, and in the center of the oscillation of the chair-seat, and rigidly connected to said parts, are not anticipated by springs manufactured under letters patent to John Plinn, 339,-754, issued April 5, 1881, or No. 345,673, issued July 20,1886, which were attached only at one place on the base rail and rocker of the chair, and wore not rigid and firm, but were long and weak, and would not hold the upper and lower rocker to an alignment, and to the use of which guides and stops and other appliances were necessary. These objections and noises, sudden jerks, a wobbling motion, and the sense of insecurity caused thereby, combined to make the use of the springs limited, and they cannot be regarded as anticipating the Connolly invention, which was generally accepted and used.</p> <p>8. Same.</p> <p>The use of such coil or spiral springs is not anticipated by the use for a similar purpose of steel springs made of flat shoet steel of various thicknesses and strength, attached to the base and rocker so as to receive a tortional spring action, and operate with a twist against itself, giving the chair a jerky, twisting movement, unpleasant to the occupant.</p>

<p>1. Patents por Inventions — Type-Setting Machine — Infringement.</p> <p>• Letters patent No. 817,808, for the combination, in a machine for producing printing bars, of a series of independent matrices, representing single characters, holders for such matrices, a series of finger-keys representing the respective characters, intermediate mechanism to assemble the matrices in line, and a casting mechanism to co-operate with the assembled matrices, so as to produce a line of type set in a solid bar, is infringed by a machine in which each of the mechanisms performs the same function as in the patented machine, though there are differences in the mechanisms of the infringing machine tending to simplicity and improvement.</p> <p>B. Same — Injunction—Presumption of Validity.</p> <p>The fact that said patent has been unquestioned for nearly six years, during which time the machines have been in the market, and over $1,000,000 has been invested in manufacturing them, is sufficient to fortify the presumption of the validity of the patent, though there has been no previous adjudication thereon.</p> <p>8. Same — Evidence.</p> <p>A preliminary injunction will not be granted to restrain alleged infringements of a patent in which there is a disclaimer of what is covered by another application, where a copy of such other application is not produced, so that the court can ascertain the extent of the disclaimer.</p>

<p>Patent? ron Inventions — Injunction—PbactiCe.</p> <p>In a suit lor infringement of a patent a decree granting a perpetual injunction was entered by default. Afterwards a second patent was issued for an invention similar to complainant’s, and the defendant began to manufacture articles under such second patent. Held, that the court would not on motion declare defendant guilty of violating the injunction, complainant’s remedy being to bring a new suit.</p>

<p>Marine Insurance — Valued Policy on Hull —Managing Owner — Insurance on Ad vances — Insurable Interest.</p> <p>Respondents issued a 12-months policy for $5,000 on hull and boiler of the steamship F., valued at $100,000. Twenty-two other companies issued other policies of like tenor, making in all $100,000 insurance. The managing owners being under advances for upwards of £6,000, owed to them by the ship’s owners in the ship’s business, took out at Lloyds, for the joint benefit of all the owners, three additional policies “on advances ” for £5,750, as the probable average for the year. The ship was totally lost, and, all the policies having been paid in full except that of the respondents, making upwards of $100.000 paid in all, the latter resisted payment, on the ground that the libelants were estopped by the valued policy from recovering more than the agreed value of the ship. It appeared that the entire insurance was not in excess of the actual value of the ship. Held, (1) that the managing owners in possession had an equitable, if not a maritime, lien on the ship, and an insurable interest in the ship, and in her continued life, in respect to their advances; (2) that this interest was a different subject-matter of insurance from the policies on hull and machinery; (8) that the intent of the policies “on advances,” and of the payment of them, was to insure that different interest, and that the amount paid thereon by the underwriters could not be offset by the respondents as a defense.</p>

<p>General Average — Volüntaiíy Stranding — No Benefit — York-Antwerp Rules.</p> <p>The schooner T., drawing 9 feet of water, and loaded with iron, in the gale of September, 1889, after parting her kedge and starboard anchor inside the Delaware breakwater, drifted in the trough of the sea, her port anchor not holding, till within 050 yards of the outer bar, near Lewes, when the master, to save life, cut the cable, and let the vessel run head on to the shore. She grounded on the outer bar, broached to, and became a total loss; but the cargo was partly saved. Upon a libel filed to recover upon a general average bond against the owners of the cargo, it appearing that when the cable was slipped the vessel would have drifted on the bar substantially in the same place within five minutes; that there was no reasonable probability that she would have sunk before reaching the bar, if the cable had not been cut; and that its only effect was to drive her upon the bar one or two minutes earlier; and that the object in cutting the cable was not to save the vessel or cargo, and that in fact it was of no benefit to either, — held, that no claim of general average arose, without reference to Yoi’k-Antwerp rule 5.</p>

<p>Cfarter-Paety—“Default” of Charterer—Construction—Violation of Custom Laws—Clearance Revoked—Demurrage—Detention.</p> <p>The charter of a brig provided that “for each and every day’s detention by default of the charterers, $80 per day should be paid ” as demurrage. The brig loaded mahogany and cedar at Laguna, Mexico, and when completely loaded, was delayed 67 days by the action of the customs authorities of the poi't, who compelled the unloading and remeasurement of the cargo on the charge of smuggling, and attempted under-statement of cargo, and non-payment of full export duties by the charterers. Though the difficulty mainly grew out of what proved to be an erroneous construction of the Mexican law by the customs officers, yet the evidence showed that the charterers had not paid the proper amount of duties, though the error was small, and had not stated to the officers the known measurement of the cargo. Held, that the charterers were bound to do all that belonged to them to get a proper clearance, and the detention was by their default, within the terms of the charter contract. In a suit by the ship-owners against the cargo to recover freight and demurrage under the charter-party, it was therefore held, that the libelants were entitled to recover.</p>

<p>Wharfingers—Contract for Dock Privileges—Includes Wharfage Custom.</p> <p>A contract by a wharfinger to furnish “dock privileges” for “the unloading of a cargo of iron from barges and for reloading and removing the cargo by trucks ” from the wharf includes the wharfage charges for giving the vessel a berth alongside the wharf, as well as the charges for space on the dock occupied by cargo, and controls any custom to the contrary.</p>

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

<p>In Admiralty. Libel in rem.</p>

In Admiralty. The tug American Eagle, with two schooners in tow, was ascending the St. Clair river just below the lower end of the south-east bend. A raft 1,800 feet long and about 250 feet wide, in tow of a tug, was descending the same bend, followed some distance above by the steamer Charles Hebard, with three schooners in tow. The tows were all attached by lines about 500 feet long, each.

<p>Collision—Steam-Vessels Meeting—Lookout — Proximate Cause—East River Navigation.</p> <p>The tug G., with a tow, was going down the East river about dusk. She had no lookout other than her pilot. A ferry-boat coming out of her slip crossed ahead of the tug’s course, attracting the attention of her pilot, so that he did not see the tug E., which, with a tow, was coming up stream, about 150 feet off tbe piers, in plain sight of the G., and giving her repeated signals. The G. collided with the tow of the E. Held, that the failure of the G. to have a lookout was the cause of the collision, rendering the G. liable therefor; that the navigation of the E. near the shore, though contrary to the state statute, afforded such abundant time and space for avoiding collision as not to constitute a proximate cause of it, and was immaterial.</p>

<p>1. Railroad Companies — Contract — Assignment or Contract eor Use or Roads.</p> <p>A contract between the C., R. I. & C. R. Co. and defendant company, giving the former the right to use the latter’s tracks, depots, etc., stipulated that the contract should bo binding on the lessees, assigns, grantees, and successors of each company during the continuance of their franchises, and provided that the former company could assign its interest in the contract only by sale, lease, or consolidation of its own property. Held, that an assignment or conveyance by the C., R. I. & C. Co. of its interest in the contract by virtue of leases, sales, and consolidation of its property, carried with it all the rights of said company under the contract</p> <p>2. Same — Estoppel.</p> <p>Where a railroad company which has granted to another company the right to the joint use of its track, depots, etc., allows the grantee and assignee of the latter to enter upon and continue in such possession and use, it is practically a construction of the power of the company to assign its rights under the contract.</p> <p>3. Same — Construction or Contract.</p> <p>Complainant’s assignor, being engaged in building a railroad from the east, with the intention of bringing it to Colorado Springs, or, possibly, direct to Denver, entered into a contract with defendant company for the use of its tracks, depots, etc., which provided that complainant’s assignor should have the full, equal, joint, and perpetual possession and use of all defendant’s tracks, buildings, stations, sidings, and switchings on and along its line of railway “between and including Denver ” and South Pueblo, meaning and intending to include all its railway and appurtenant property “between and at tbe points aforesaid. ” Meld, that tbe contract gives complainant the right to uso the depot grounds and property of defendant in Denver for the handling of its freight and passenger business, without respect to the road over which it may haul its cars. Hallett, J., dissenting.</p>

<p>1. CORPORATION — CONTRACT—AGENCY.</p> <p>Where a bill for injunction avers that a certain agreement, though signed only by the stockholders of defendant company, was in fact executed for and on behalf of the company, and that the stockholders were duly authorized and empowered to act for the company, and that tho company had received the proceeds of "the consideration of such agreement, it cannot be held on demurrer that the company is not bound by the agreement simply because its name is not appended thereto, and such agreement purports to be only the individual undertaking of certain stockholders.</p> <p>3. Same — Ultra Vires — Trust Combination.</p> <p>A trust agreement by which the stockholders of seven corporations, situated in different parts of the country, acting for their respective companies, authorize trustees to purchase stock, bonds, or property of any corporation or firm engaged in.a certain business; to issue trust certificates therefor; to organize corporations to carry on such business; to exercise control over corporations by the purchase of their stock; to sell any property other than stocks, and receive the purchase money, and to receive the dividends on stock, interest on bonds, etc.; and, after paying the,expenses, of .the trust, to declare dividends on the trust certificates, — is beyond the corporate p'owers of a Missouri corporation; and a covenant made by it, in consideration of admission to the trust and of the benefits to be derived by its stockholders from the trust agreement, that it would not engage in the business for which it was organized for a period of 35 years, is void, and the company will not be restrained by injunction from violating it.</p>

<p>On Demurrer to Intervening Petition.</p>

<p>Master, and Servant—Defective Machine—Negligence op Fellow-Servant.</p> <p>An employer is liable for an injury to an employe caused by a defective machine, even though the negligence of a co-employe may have contributed to the accident.</p>

At Law. Action for the recovery of the possession of the middle third of lots numbered 1, 2, and 3, in block No. 4, in Groveland addition to Minneapolis.

<p>Eminent Domain—Right to Jury Trial.</p> <p>In a proceeding taken by the government under Act Cong. Aug. 18, 1890, to condemn lands to the use of the United States, the owner of the land is not entitled as a matter of right to a trial by jury.</p>

<p>1. Street-Railway Companies — Accident at Railroad Crossing — Negligence.</p> <p>Whore a passenger on a street-railway car is brought into apparent imminent danger from a collision at a railroad crossing by the negligence of the motor-man in attempting to cross when he could see that there was a probability ol the engine reaching there first, she can recover for injuries received in attempting to flee from it, though she would have been uninj ured if she had kep b her seat; but, if it would not have been brought into such danger except for the sudden, unexpected, and unanticipated obstruction of the car by a wagon, then there would be no liability on the part of the company.</p> <p>& Same.</p> <p>The right of precedence in crossing between two railroad trains considered.</p> <p>Note. The jury returned a verdict for defendant. Plaintiff filed motion for a new trial on account of alleged error in the charge. This motion was by the court overruled, without an opinion.</p>

<p>At Law. Action on marshal’s bond.</p>

At Law. This was a suit brought by the importer against the collector to recover the sum of $307.10 claimed to be an excessive duty unlawfully exacted upon an importation of hair, invoiced as “white cattle-hair,” (goat,) and entered as common goat-hair. The appraiser classified the article as hair class 2 under 30 cents per pound, subject to a duty of 10 cents per pound, and the liquidation was made in accordance with the appraiser’s return.

<p>At Law.</p> <p>This was á suit to recover the sum of $357.57 alleged to have been unlawfully exacted as customs duties in an importation of gunny bagging and so-called “paper stock. ” It was entered as paper stock, but returned under Tariff Ind. (New) par. 343, as gunny bagging suitable to the uses for which cotton bagging may be applied and valued at less than 7 cents per pound. The claim of the importer was under paragraph 754, Id.,free list, providing for paper stock, crude, of every description, including gunny bags, gunny, cloth, old and refuse, to be used in making and .fit only to be converted into paper, and unfit for any other manufacture. The testimony of the plaintiff’s witnesses tended to show that the article was fit only for paper stock, and also that it had been in fact so used.</p>

<p>Trade-Mark — Infringement—Injunction.</p> <p>On bill for injunction it appeared that complainant was engaged in the manufacture and sale of “Hostetter’s Bitters,” and is the owner of the trade-marks, brands, labels, etc., used in connection with such sale; that defendant manufactures an article of bitters closely resembling Hostetter’s Bitters in appearance and flavor, which it sold in bulk to its customers, advising them at the same time to refill bottles that originally contained Hostetter’s Bitters with the spurious article, and put them on the market as genuine; that in all probability the plaintiff had been thereby to some extent damaged, and the public deceived. Held that, though defendant did notitself use plaintiff’s labels and bottles, still in advising its customers it was guilty of a wrong which a court of equity will enjoin.</p>

In Equity. Bill by Henry H. Paine to enjoin one Snowden from continuing an alleged infringement'of design patent No. 13,405, for backs for chairs, November 14, 1882.

<p>Patents foe Inventions — Novelty.</p> <p>Letters patent issued May 9,1876, to Oscar Boehme, for improvement In the manufacture of balls and rosettes of yarn, consisting in the use of a funnel-shaped tube through which the yarn is drawn, so that it comes out of the small end in a com-pi’essed condition, ready to be bound and cut, are void for want of patentable novelty.</p>

<p>Patents fob Inventions — Novelty.</p> <p>Letters patent No. 16,031, Issued April 7,1885, to Edward C. Stearns, for a design for the casing of a hay-fork pulley, consisting of side plates having a ring and hubs, central ribs, laterally projecting oars and marginal beads, are not void for want of patentable novelty.</p>

<p>Patents fob Inventions — License.</p> <p>A conveyance by a patentee oí the right “to use and manufacture and sell rights to use ” the patented article in a certain county is a mere license, not entitling the grantee to sue for infringement in his own name, since it does not convey the right to sell the patented article.</p>

<p>Injuries — Servant—Negligence of Fellow-Servant.</p> <p>In an action for personal injuries received by a longshore-man while engaged In helping to load the libeled steam-ship, and alleged to have been caused by the negligence of the second mate, it appeared that it was not the duty of the latter to employ or discharge the men engaged in loading the steamer, or to superintend them; that those duties belong to the first mate; that the second mate held a subordinate position, and was engaged in rushing forward the work, and urging the men to greater exertion. Held, that the second mate was not a vice-principal, but a fellow-servant, of plaintiff, and that defendant was not liable.</p>

<p>Seaman’s' Wages—Vessel Run on Shares—Master to Pat Wages—Notice to Seaman—Owner’s Liability.</p> <p>A schooner was run under an agreement between owner and master by which the master was to pay all wages of crew. Libelant was engaged as mate of the vessel, without notice that the schooner was running on a lay, which fact he learned incidentally some months later. On libelant’s discharge the master gave him a written statement that “Capt. Sehr. Euro tas & owner” owed him $90 wages. This was not presented to the owner of the vessel, nor any notice of it given him until after the master had been discharged in debt to the owner. This suit was brought against the owner to recover the said amount of wages. Held, that the cumulative remedies against ship, master, and owner, which the law upholds in favor of a sear man for his wages, ought not to be abridged, except in cases of a clear, common understanding to that effect; that the accidental notice of the lay received l?y libel-ant was not sufficient to relieve the owner from liability in case the master were negligent or treacherous; and that libelant was entitled to recover.</p>

<p>1. Admiralty — Bill of Lading — Libel—Pleading.</p> <p>Where a railroad company libeled a steam-ship, alleging that it had delivered to it certain bales of cotton for transportation to Bremen under customary bills of lading, which cotton had been received by libelant at Atlanta under through bills of lading to Bremen, and that the master took the cotton, but refused to deliver to libelant any bill of lading therefor except one containing a provision that it should be subject to the conditions of a charter-party to which libelant is not a party, and by which it is not hound, and also refused to redeliver the cotton, the action is in no sense founded on the through bill of lading under which libelant first received the cotton, and the libel was not insufficient because it failed to set it out.</p> <p>2. Same.</p> <p>¡Nor can the libelant be required to set out the terms of bills of lading expressed to be subjected, to the conditions of the charter-party, which were tendered by the libelee, since it had not received and could not be expected to know their provisions.</p> <p>8. Same.</p> <p>The through bills of lading under which libelant took the cotton provided that it should be delivered to the libelee steam-ship for transportation to Bremen under “customary bills of lading. ” Held, by this language it was intended to designate not a particular instrument, but a class of instruments whose tenor is susceptible of proof, and that it is no objection to the libel that it failed to set out such bill of lading, or have a copy thereof annexed.</p>

<p>1. Admiralty — “Ships”—Coal-Barqes—Possessory Action.</p> <p>Goal-barges, which are rough, square-cornered boxes, from 165 to 180 feet long, about 26 feet wide, and 8 to 10 feet deep, and have no motive or propelling power, no master or crew, no tackle, apparel, or furniture, and no name, being generally designated by number, and which are not permitted to be enrolled or licensed under any law of the united States, and have no license, are not “ships, ” within the language of admiralty rule No. 20, and cannot be made the subject of a possessory suit, therein provided for.</p> <p>8. Same — Marine Tort.</p> <p>Where the claimant had negotiated with the libelant for the purchase of certain coal barges, and, being informed of the location and price, and that he could have them, if suitable, took possession at once, without advising the libelant, and the latter subsequently sold them to a third party, and seeks by action to recover possession, so as to carry out that contract, there is no such fraudulent taking by the claimant as will enable the libelant to maintain an action for a marine tort, and the action must be regarded as a possessory action only.</p>

<p>Admiralty Appeal.</p>

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

<p>1. Eqüiti — Adequate Remedy at Law.</p> <p>Where it appears that complainants bought cotton of defendant, that defendant’s agent who weighed it had an annual contract with him, guarantying him against loss by overweights, by which contract the agent was led to report weights which were, without defendant’s knowledge, excessive, so that, though both complainants and defendant were innocent, there was paid to defendant a large sum in excess of the amount due for the cotton actually sold and received, the complainants’ remedy at law is pei-fect by action for money had and received, and equity will not take jurisdiction.</p> <p>2. Same — Discovery.</p> <p>Semble, since under Rev. St. TJ. S. § 869, either party may call the other as a witness, and, by subpoena duces tecum, require him to produce books and papers, the complainant cannot give jurisdiction to a court of equity, in a proceeding where his remedy is otherwise perfect at law, by asking for a discovery.</p>

<p>1. Hakbobs — Unlawful Extension of Docks — Injunction.</p> <p>Act Cong. Sept. 19, 1890, § 7, provides that it shall be unlawful to build a wharf outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, in such manner as to impair navigation, without the permission of the secretary of war. Held, that a preliminary injunction will be granted against the extension, without the consent of the secretary of war, of a dock 25 feet into a navigable river, to a point where the depth is from 26 to 28 feet, when such extension will seriously injure the commerce of an adjoining ferry company.</p> <p>2. Same.</p> <p>The fact that a dock extends to a certain point in a river is no ground for not enjoining the extension of an adjacent dock to that point, when such extension is unlawful.</p>

<p>Tküst — Laches.</p> <p>Where, in a proceeding to obtain a transfer of the legal title to a largo quantity of swamp land, alleged to be held by the defendant county in trust for the complainant, it appeared that the entries under which complainant claims wore made more than 80 years before; that for more than 20 years the county had openly and persistently denied the trust, and had made sales and conveyances of largo quantities of the lands to persons who have made improvements thereon; that complainant’s title to a large portion of the lands depended upon a grant in aid of a plank-road; and that, although the road had never been built, the certificates of entry and sale were issued to the contractors, who are the parties under whom complainant claims; that the charter of the road was subsequently repealed, and the county had continuously contested the validity of the grant; that the witnesses who were conversant with the transaction of the issue of certificates of entry and sale are since dead; that in the civil war the records of the county were scattered; that those which were inexistence up to the year 1872 were in that year destroyed by fire, — the complainant will be held guilty of laches, and the bill dismissed.</p>

<p>1» Cobpoeations — Joint Stock Company — Taxation.</p> <p>A company which is a copartnership, constituted by written articles of association, having its capital divided into shares which are transferable, which is not dissolved by the death of a shareholder, the business of which is conducted by a board of managers, and which has all its property vested in the exclusive custody of three trustees, and conducts all legal proceedings in the name of the president or of the three trustees, though a quasi corporation, as between the members, by their voluntary contract, but not incorporated or created by franchise, is not within the meaning of a statute subjecting to taxation all moneyed or stock corporations deriving an income or profit from their capital stock or otherwise.</p> <p>i. Equity — Adequate Remedy at Law — Illegal Taxation.</p> <p>In a proceeding in equity, the objection that there is a plain and adequate remedy at law is jurisdictional, and a bill for injunction to restrain the collection of a tax must bo dismissed, where such a remedy exists, notwithstanding the objection is not raised by the defendant either by plea, demurrer, or answer.</p>

<p>1. Public Lands — Railroad Grant — Legal Title.</p> <p>The grant of public lands to the Northern Pacific Railroad Company in aid of Its railroad by Act Cong. July 2,1864, vested the company with the legal title to such lands when the grant took effect, upon the designation of the route of the road, irrespective of the fact that no patents had been issued therefor.</p> <p>& Same — Invalid Patent — Equitable Relief.</p> <p>Having the legal title, and being out of possession, the company can maintain ejectment against persons holding under an invalid patent issued pursuant to an entry of the land as a mining cláim, though in fact it was valuable only for agricultural purposes; but a bill by it to determine such adverse title is demurrable as failing to show grounds for equitable relief.</p>

<p>Rails >ad Grants — Illegal Patent — Equitable Relief — Remedy at Law.</p> <p>A railroad company claiming land under a legislative grant, and having a legal title, il any, cannot, when out of possession, maintain a bill against parties claiming under a subsequent patent to determine title, on the ground that the exercise of equitable jurisdiction will prevent a multiplicity of actions, as in an action in the nature of ejectment plaintiff can join any number of parties defendant without regard to the extent or character of their possessions.</p>

<p>Railroad Grants — Invalid Patent — Equitable Relief.</p> <p>A railroad company which has, if anything, a legal title to lands by reason Of a legislative grant, cannot maintain a hill in equity against parties claiming under a subseqent patent to'have them decreed trustees of plaintiff and to convoy the land to plaintiff, as, if plaintiff’s title is good, then defendants have none, and such decree would not supply the place of the patent to which plaintiff is entitled.</p>

<p>1. Land Grant — Northern Pacific Railroad — Construction.</p> <p>The provision oí the'Northern Pacific Railroad Company’s grant of public lands, that “the president of the United States shall cause the lands to be surveyed for forty miles on both sides of the entire line of said road after tho general route shall be fixed, and as fast as may bo required by the construction of said railroad, and the odd sections of land hereby granted shall not be liable to sale or entry or preemption before or after they are surveyed, except by said company, as provided in this act, ” will not bo construed as withdrawing the lands within the limits indicated from sale or entry until the line of the road was definitely fixed by filing a map thereof with the commissioner of the general land-office, as required by the statute.</p> <p>8. Same — Pending Claims Thereto.</p> <p>The grant to the Northern Pacific Railroad Company of certain specified lands along the line thereof whenever “the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land-office, ” will not be held to include lands which had been entered as mining claims, and the applications for patents to which were pending when the plat of the road was filed, although the lands were subsequently declared to be agricultural, and the entries held invalid.</p>

<p>1. Pubt.ic Lands — Railroad Grants.</p> <p>The fact that public land is in the possession of a settler, who is living on it, without complying with either the pre-emption or the homestead law at the time the land is included in a grant to a railroad company, does not keep it from being public land not reserved, sold, granted, or otherwise appropriated.</p> <p>2. Same — Pre-emption.</p> <p>Right of pre-emption cannot be acquired by forcibly intruding upon land in the possession of one who has settled upon, improved, and inclosed it. Following Atherton v. Fowler, 96 U. S. 518.</p>

<p>Railroad Grants — Pre-emption Claim — Abandonment.</p> <p>In an action in the nature of ejectment by a railroad company claiming under a legislative grant on conditions subsequently fulfilled, a complaint, otherwise setting forth a good cause of action, is not rendered demurrable by the allegations that on a certain day, 14 years before the fulfillment of said conditions, one G. filed a declaratory statement, wherein he alleged settlement on and made pre-emption claim to the lands in controversy, but that said G. did not then or at any time make settlement on said lands, and that until subsequent to the time plaintiff claimed to have fulfilled its conditions no other entry or filing was made on the land, as, if these facts showed that a pre-emption claim had existed, it should be considered to have been abandoned.</p>

<p>1. Guardian and Ward — Probate Sale.</p> <p>Upon a bill in equity to set aside a sale by a guardian of a ward’s lands under order of court, on the ground of fraud and collusion between the guardian and the purchaser, the federal court, as a court of equity, cannot sit in review to pass upon errors and irregularities in the proceedings of the probate court, but will confine itself to the issues as to whether the guardian acted fraudulently, and for his own benefit, and whether there was any collusion between him and the purchaser.</p> <p>9. Same — Vacating—Evidence of Fraud.</p> <p>Where a guardian, acting at the instance of his ward and of his ward’s mother, who had a dower interest in the estate, procured an order of the probate court for the sale of real estate at its appraised value, made a sale, which was necessary to pay the ward’s debt for board and lodging, and three years later, there being no further necessity therefor, and no new appraisement, made a further sale, and other sales of the balance later on, when there were still funds of the ward in his hands from the former sales and from other sources, such facts alone, in the absence of evidence of collusion with the purchaser, or of facts sufficient to put him on inquiry, or of any knowledge on his part of the condition of the ward’s estate, will be insufficient to justify a court of equity in setting aside such sale, especially if it also appears that the price realized was the fair value of the land.</p>

<p>Corporations — License—Tax on Divídenos — Construction op Lease.</p> <p>The provision of Act N. J. April 18,18S4, that every gas company shall pay an annual tax of one-half of 1 per cent, upon its gross receipts, and 5 per centum upon dividends earned and declared in excess of 4 per centum, by way of a license for the right to continue and act'as a corporate association, and for its failure to do so shall be restrained from the'exercise of its corporate franchise until the payment is made, imposes a license fee for the exercise of its corporate franchise, and not a tax upon its property, within the terms of a lease whereby one gas company granted to another its works and property for the term of 20 years, at a certain rental, with the condition that the lessee should pay “all assessments and taxes lawfully assessed oi levied upon the real or personal property, franchises, capital stock, or gross receipts” of the lessor during the term.</p>

<p>1. Death by Wrongful Act — Penal Statute — Foreign Jurisdiction.</p> <p>Rev. St. Mo. 1889, § 4425, providing that whenever any person shall die from any injury resulting from or occasioned by negligence, unskillfulness, or criminal intent, the defendant shall forfeit and pay the sum of 85,000, which may he sued for and recovered, irrespective of the actual damages caused by such death, is a penal statute, and, under the rule that such statutes can be enforced only within the sovereignty of their creation, a federal court in another state will not entertain an action thereunder.</p> <p>2. Same — Mother of Illegitimate Child.</p> <p>Under the further provision of that section, (Rev. St. Mo. 18S9, § 4425,) that if the deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, then the father and mother may join in the suit, and each shall have an equal interest in the judgment, extends only to the case of natural born legitimate children, and no action can be maintained by a mother for the death of her bastard child.</p>

<p>Public Lands — Swamp Lands — Decision op Commissioner.</p> <p>By Act Congy Sept. 28, 1850, the commissioner ol the general land-offlce was constituted a special commissioner for determining the character of lands which, under that act, either passed to the state or were lands subject to sale; and where, in an action of ejectment, it appears that the lands in question were a part of a certain list of lands selected by the state, and claimed by it under the act, but that its claim was rejected by the commissioner in 1852; that again, in 1882, the land was claimed by the state as swamp land, and that the claim was again rejected by the commissioner as having been finally adjudicated by the former rejection thereof; and that the action of the commissioner was sustained by the secretary of the interior on appeal, — such decision of the land department will be regarded as conclusive ; and tne question whether the lands are really swamp lands, within the meaning of the act, will not be considered by the court.</p>

<p>At Law.</p> <p>Beach v. Reynolds, 53 IST. V. 1; Coit v Campbell, 82 if. Y. 509, and cases cited; Bennett v. Cook, 43 Y. 537; Evans v. Cleveland, 72 ÍT. Y. 486; Lyon v. Park, 111 IST. Y. 350, 18 if. E. Rep. 863.</p>

<p>Equity — Laches—Lapse op Time.</p> <p>Where a bill in equity discloses that complainant was informed as early as 1876 by her brother that her father, who died in 1848, had left a will devising to her certain land in California; that, after making some inquiries through her husband, she remained quiescent until 1888, when she learned that the land had been conveyed in 1850 to defendant’s grantor by one assuming to act as executor of her father’s will, and that the title was confirmed by the board of land'commissioners under Act Cong. March 3,1851, and that she did not bring suit until 1890, — her claim will be held to be stale notwithstanding it also appears that she was ignorant, and in, great poverty, and a demurrer to the bill sustained.</p>

<p>Indictment — 'Violation of Election Laws — Refusal to Testify.</p> <p>Rev. St. U. S. § 110, provides for the taking of testimony in contests as to the election of a member of the house of representatives before certain officers. Id. § 111, provides for the issue by such officer of his subpoena to the witnesses, and Id. § 114, for the service of the subpoena. Held, that an indictment under Id. § 116, for refusing to attend and testify, which avers that defendant, having been duly served with a subpoena, etc., “did refuse and neglect to attend and testify,” but which fails to allege special statutory authority for the issue of the subpoena, and the particular official by whom it was issued, is insufficient.</p>

<p>Patents for Inventions — Infringement—Thill Springs.</p> <p>Letters patent No. 844,786, issued June 39, 1886, to William E. Murbarger, for an improved anti-rattler spring for thill couplings, consisting of a spring of V form, having arms provided with reverse curves at their ends, and with convexed portions between the V point and the reverse curves, are not infringed by a spring which, though substantially like the patented device, has no reverse curve and no convex portion; since said patent, being but one in a long serieB of similar improvements, is restricted to the precise form described in its claim.</p>

<p>Patents eor Inventions — No. 322,975 — Beer Vessels.</p> <p>Patent No. 222,975, granted to Otto Zwietuseh and Edward Heitman for an Improvement in automatic pressure relief apparatus for beer vessels, was not anticipated by patent No. 219,057, granted to Emil Zesob for an improvement in relief attachments for beer-fermenting vessels.</p>

<p>Trade-Mauk — Injunction.</p> <p>The labels on complainant’s tobacco packages had a representation of a shield or banner and an ellipse with a circle, and the words “ Smoke and Chew. ” The colors used were red and yellow. Defendant’s labels had the same figures and colors, and the words “ Smoke and Chew, ” and were so much like complainant’s that one might easily be mistaken for the other. One was called “Peach Blossom, ’’ and the other “Sweet Lotus. ” Held, that defendant’s wrappers were a palpable imitation of complainant’s, and that their use should be enjoined.</p>

<p>L Admiralty — Wages op Performers in Floating Cibods.</p> <p>Libelants were performers in a show given in a float or tow at points on the Mississippi river. The tow was propelled by a former ferry-boat, licensed for the coastwise trade. Libelants’ chief duty was to perform before the audience, though they also did subordinately some duties connected with running the vessel. The intervening libelant was engineer on the propelling boat or tug-boat. Meld, that the service of the original libelants was land service, substantially over which the admiralty courts could not take jurisdiction. Meld, also, that the service of the engineer was maritime, giving to him a maritime lien which could be enforced in a court of admiralty.</p> <p>8., Same — Wages op Engineer on Tug-Boat.</p> <p>'Services rendered by an engineer on the propelling tug-boat were strictly maritime, and his libel must be maintained.</p>

<p>Admiralty Jurisdiction—Seaman’s Wages—Vessel Without Name, Registeb, oh Documents.</p> <p>A British vessel was sunk in the harbor of New York, and abandoned by her owners, and her register closed. She was raised and sold to American citizens, and, while without name or register or documents as a vessel, libelant was employed by her owner as mate. The owner claimed that he was to have been mate when the vessel was ready for sea. In the mean time he served about the wreck as it was being repaired. He was discharged before the vessel was documented, and before ahe went to sea. On suit brought in rem to recover his wages, it was contended that the wreck was not a vessel, in the sense that she could have officers or mariners, that the services were not maritime, and the court had no j urisdiction. Held, that the case was within the admiralty and maritime jurisdiction of the United States, and libelant was entitled to recover mate’s wages.</p>

<p>Maritime Liens—Priority — Wages — Salvage — Supplies—Laches—Burden or Proof.</p> <p>Claims for wages, salvage, and supplies, incurred upon the same voyage, at the port where the salvage service terminated, where the seamen’s right of action accrued, and where the supplies were furnished, are concurrent, and the liens for wages and salvage take precedence over the lien of the material-men, where there has been no such laches on the part of the salvors as to deprive them of their right to priority. The burden of showing such laches is on the material-men.</p>

In Admiralty. The libel was filed by certain underwriters against the steamer Roanoke, in a cause of general average, civil and maritime. The libel charges that the Roanoke on the 17th May, 1890, was lying at her dock in the port of Buffalo, bound for Toledo, partly laden with a cargo of merchandise consigned to Toledo, consisting principally of pipe-clay, plaster, cement, jute, cases of envelopes, and spiegel-iron.

<p>Collision—Damages—Loss op Existing Charter.</p> <p>A vessel, under a charter which ended at New York, was sunk by collision before reaching her port of destination. Awaiting her at New York was a second charter from that port to Cadiz. The commissioner, in assessing damages against the colliding vessel, declined to allow as an item thereof the freight which the ves sel would have earned on the second voyage. Held, that such freight was a proper item of the damages recoverable against the colliding vessel.</p>

<p>Collision—Steam and Sail—Pleasure Yacht—Dutt os Steam-Vessel.</p> <p>A steam-vessel is under the same obligation to avoid a sailing yacht as any other vessel under sail.</p>

<p>„ Removal of Causes — Application.</p> <p>Where, in an action on an insurance policy, it appears that the policy was assigned by the insured to a third person, who assigned it to one of the parties to the action, a petition for removal on the ground of diverse citizenship, which fails to show the citizenship of such third person, is not sufficient to warrant removal.</p> <p>S. Same — Separable Controversy.</p> <p>In an action brought by an administratrix against an insurance company upon a policy of insurance oh the life of her intestate, in which one claiming the policy as assignee is made a party defendant, the controversy between the administratrix and the assignee, on the one side, and the company on the other, is single.</p>

<p>Removal op Causes — Local Pkejudicb — Time or Application.</p> <p>Under the removal act oí 1887, as amended in 1888, which provides that a cause may be removed on the ground of local prejudice “at any time before the trial thereof, ” an application for removal on the ground of local prejudice comes too late when made after a trial on the merits has been entered upon, though the jury were discharged without agreeing on a verdict.</p>

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

<p>1. Railroad Mortgage — Foreclosure—Private Sale of Property.</p> <p>In proceedings to foreclose the liens of the state on railway property as the guarantor of the railroad’s bonds, and also the mortgages thereon, the court will refuse to authorize the sale of land, free from such liens, at private sale, unless fully informed as to its selling value. The opinion of one person not shown to be an expert, and who must derive his knowledge from the opinion of others, is not sufficient.</p> <p>3. Same — Power of Sale — Consent.</p> <p>On foreclosure proceedings, where a receiver has been appointed, but the relative rights of the various parties have not been estab ished, the fact that the mortgages authorize the sale of lands not needed for corporate purposes, and the application of the proceeds by the trustees to the extinguishment of the oldest liens, will not justify such sale by the court, in the absence of consent by all the parties, and the mere absence of counsel from the hearing of a motion for that purpose will not amount to consent.</p>

<p>1. Federad Courts — Jurisdictional Amount.</p> <p>In a proceeding to set aside certain conveyances as fraudulent and a cloud upon the plaintiffs’ title, the “matter in dispute, ” within the meaning of Act Cong. Aug. 18, 1888, (25 St. p. 484, § 1,) limiting the jurisdiction of the United States circuit court, is the value of the land.</p> <p>2. Same — Evidence.</p> <p>Where, in such a case, the plaintiffs allege that the value of the land is more than $2,000, but it appears by undisputed testimony in support of a plea to the jurisdiction that it was much less, an order of dismissal must be entered in accordance with the provisions of Act Cong. March 3, 1875, § 5,18 St. p. 472.</p>

<p>Injunction — Street Railway — Pleading.</p> <p>Where, in proceedings for injunction to prevent the destruction of plaintiff’s street railway track, situated in one of the public streets of defendant city, it was denied by the answer that the track in question was constructed in accordance with the requirements either of the city ordinance or of the contract with the defendant transit company pursuant to which it was built, and the imperfections and deficiencies thereof were specified, the burden of showing a compliance therewith is on the plaintiff; and, if no evidence is taken, but the case is heard on the pleadings, the allegations of the answer must be taken as true; and, as it shows the construction of plaintiff’s track to be in violation of the very law under which it claims, the injunction will be denied.</p>

<p>Equity — Adequate Remedy at Law — Vacation or Judgment.</p> <p>Where, in a suit in the territorial district court of Washington, judgment is rendered upon a stipulation of counsel made in contravention of defendant’s instructions to his attorney, he has a proper and adequate remedy by a motion to vacate under the Code, and equity will not tafee jurisdiction of a bill to annul and enjoin the execution of the judgment filed before the time within which a motion to vacate could have been made had expired.</p>

<p>Judgment — Res Adjtjdicata — Dismissal on Demukber.</p> <p>Plaintiff filed Ms Rill in the state court to redeem certain stock pledged by him with defendant in 1871. On demurrer the court sustained the plea of the statute of limitations, and dismissed the bill. In the present suit for the same stock plaintiff stated the original transaction of 1871, and further set forth a new and different pledge, in 1875, of the same stock for other debts and for future advances which were made. Held, that the last suit is not barred by dismissal of the bill in the first suit, since the dismissal was on demurrer for insufficiency of the allegations of the bill, and not on the merits.</p>

<p>1. Creditors’ Bill — Joinder of Complainants.</p> <p>Where a creditor files a bill for himself and such other.creditors as may join as complainants, any other creditor of the defendant should be permitted, on petition, to join in the suit as co-complainant.</p> <p>3. Same — Equitt Practice — Dismissal.</p> <p>After a receiver has been appointed in such suit, and other creditors have joined as co-complainants, the original complainant cannot dismiss the suit without their consent.</p> <p>8. Same — Jurisdiction op Federal Court.</p> <p>The fact that such co-complainants were citizens of the same state as the defendant will not deprive the circuit courts of jurisdiction where the defendant and the original complainant are citizens of different states.</p>

<p>Federal Courts — Practice.</p> <p>Inasmuch as the circuit court of the United States is vested with exclusive Jurisdiction to try cases involving the validity of patents issued by the United States, the rule that the pleadings and practice shall conform to the practice in like cases in the state court does not apply, and in such a case the plaintiff cannot avail himself of the provisions of the Ohio statute (Code Ohio, §§ 5099-5101) by attaching to his petition interrogatories to he answered by defendant on pain of being defaulted, and thereby compel him to disclose testimony which is important in the trial of the cause.</p>

<p>Counties — Liability boh Touts.</p> <p>Plaintiff, the employe of an independent contractor, engaged in building abridge on a county road, was injured by the negligent explosion of a charge of dynamite by the agents of defendant county while blasting and building an approach to the bridge. Held, in an action for damages, that counties are not liable for the torts of their officers acting within the line of their authority, unless made so by statute.</p>

<p>Railkoad--Stock-Killing — Evidence.</p> <p>It is not negligence for a railroad company to leave a train of freight-cars standing on a siding near a crossing, provided the crossing itself is kept unobstructed, and the fact that a mule wandering up the track from the crossing was concealed by the freight-cars from the engineer of a rapidly approaching train until it came around the end of the freight-cars onto the main track at so little distance that it was impossible to stop the train before the mule was struck, will not render the company liable therefor.</p>

<p>At Law.</p> <p>This was an action by plaintiff for the killing of her husband, Frank McClary, on March 12,1889, by'a switch-engine of defendant. Theac-cident occurred at Twentieth and Harrison streets, in Kansas City, Mo. The trains of defendant used the tracks of the Kansas City Belt Line, which were laid on Twentieth street. There were two tracks running east and west. The distance between the two tracks was nine feet. About the time of the accident a passenger train of the defendant was going east on the south track, and a switch-engine was backing west on the north track* The switch-engine struck and killed McClary. There was evidence tending to show that the switch-engine was running faster than authorized by ordinance; that deceased was going south on Harrison street; that he walked across the north track, and was about stepping on the south track, when he glanced up and saw the passenger train, consisting of three or four cars, within a very few feet of him; that to get out of the way of that train he stepped backward, never looking eastward, till he reached the north track, and stood on one of the rails thereof. Just as the rear end of the passenger coach got by him, the switch-engine going east struck him, causing his death. The defendant demurred to the evidence.</p>

<p>Contributory Negligence.</p> <p>A person traveling in a public street, and finding it obstructed by a freight train at fiill stop, to which a locomotive is attached; who, relying upon the assurance of abrakeman that he can safely climb over the bumpers, and pass between the cars, as the train will remain stationary for some time, attempts to do so, and while in the act suffers an injury by the train being started suddenly, without warning by ringing the bell or sounding the whistle, is guilty of such contributory negligence as will prevent his recovery for the injury.</p>

<p>1. Carriers op Passengers — Ejection from Caes.</p> <p>Plaintiff purchased a ticket ior an extended journey, the latter part oí which was over defendant’s road. By mistake the agent punched the ticket so as to indicate that it expired on the day on which it was issued. The mistake was not discovered until she was on the first division of defendant’s road, when the conductor, upon telegraphing to the head office, received orders to honor the ticket until further instructions. At the end of his division, when he left the train, he delivered her the telegram. The conductor of the next division, notwithstanding the telegram, and the evidence on the face of the ticket that it had been honored, telegraphed to the division superintendent, and received no answer, and meanwhile, from time to time, for several hours, worried plaintiff by making remarks calculated to disturb her, and make hor realize the disadvantages of her situation, and showing a desire to be unduly familiar. Finally, about midnight, after she had been carried a great distance, he put her off the train. She had explained in her first conversation that she was far from home, her means were exhausted, and she was not able to pay her fare. Held, that plaintiff was entitled to recover damages for the expulsion and ill treatment, in an action on the contract represented by the ticket.</p> <p>8. Same — Verdict—Measure op Damages.</p> <p>A verdict for $1,000 having been set aside, and a new trial granted, a second verdict for $500 was renderod. That, too, was set aside, and on the third trial another verdict for $1,000 was rendered. Held, that the limits of the court’s discretion had been reached, and the verdict would not be disturbed as excessive.</p> <p>8. Same — Misconduct op Jury.</p> <p>Where it appears that the jury arrived at a verdict by each juror writing the amount which he was willing to give, adding the several amounts together, and dividing the total by 13, the verdict will not be aside for that reason, where it further appears that no agreement was made to abide the result, and where the amount agreed upon is much less than tho quotient so obtained.</p>

<p>1. Trespass — Cutting Timber on Public Lands — Evidence op Value.</p> <p>In an action of trespass for cutting timber upon public lands, upon an issue as to> the value of the saw-logs at a particular place, it is error to permit witnesses to testify as to the value of saw-logs generally at that time, without having their attention directed to the place in question.</p> <p>S. Same — Burden op Proop — Damages.</p> <p>In an action of trespass by the United States for cutting timber on government land the burden of showing that the timber was cut by mistake, with a view of mitigating the damages, is upon the defendants; and, in the absence of evidence to that effect, there is no error in permitting the government to recover the value of the saw-logs when already brought to the water. -,</p> <p>8. Same — Partnership.</p> <p>Where such a trespass is committed by a firm, one partner cannot show that as to him it was done through mistake, though his partner may not have been mistaken, and ask that one judgment for damages be rendered against him and a different one against his partner, since his holding the fruits of the tort after being notified of the mistake is a ratification Of his partner’s act.</p>

<p>1. Comptroller of the Currency — Deputy—Presumption.</p> <p>The deputy comptroller oí the currency being authorized by law tc act for the comptroller in certain contingencies, the courts will presume, in the absence of any showing to the contrary, that the deputy, in acting for the comptroller in any particular instance, has acted lawfully.</p> <p>2. National Banks — Assessment on Stockholders — Action by Receiver — Complaint. 1</p> <p>In an action by the receiver of a national bank against its stockholders to collect an assessment made by the comptroller of the currency the complaint need only allege that the comptroller determined that the assessment was necessary and levied it, since such an assessments conclusive as against the stockholders.</p> <p>8. Same — Form op Action.</p> <p>Such an assessment may be collected by the receiver by aD action at law against the stockholders.</p> <p>4. Same — Defense—Estoppel.</p> <p>In such action the stockholders cannot inquire into the legality of the receiver’s appointment.</p> <p>5. Same — Constitutional Law.</p> <p>The collection of such an assessment by an action at law does not deprive the stockholders of their property without “due process of law. ”</p> <p>6. Same — Liability of Stockholder.</p> <p>A person who becomes a stockholder in a national bank thereby submits himself to the provisions of the national bank act, and becomes liable to be assessed to the extent of his statutory liability for all debts of the bank existing while he holds his stock.</p>

<p>Insxjkance — Premium—Forfeiture—Tender.</p> <p>ünder Civil Code Cal. § 3611, which provides that an insurance policy may declare that, a violation of specified provisions thereof may avoid it, a tender of the premium,, together with all other sums due on the policy, will not prevent a forfeiture of the policy for a previous failure to pay the premium when due.</p>

<p>Bill of Exchange — Jurisdiction or Federal Court.</p> <p>A bill of exchange drawn by a corporation in favor of itself, and by it indorsed in blank, is payable .to bearer, within the meaning of the statute restricting the jurisdiction of circuit courts in actions on negotiable instruments.</p>

At Law. Appeal from decision of general appraisers under section 15 of customs act of June 10,1890. The following was the decision of the board of general appraisers, November 15, 1890, from which the appeal was taken by the collector to the circuit court: “The merchandise was classified as an unenumerated manufactured article, under section 2513, ftev. St., (Act 1883,) and duty was assessed at 20 per cent.

At Law. Application by the collector of the port of New York for a review by the United States circuit court of a decision of the board of United States general appraisers reversing the decision of the said collector in this matter, pursuant to section 15 of the act of June 10, 1890, “An act to simplify the laws ,in relation to the collection of the revenues.” The merchandise in question was imported by McCarty & Co., per steamer Rugia, from Hamburg,’ and entered at the port…

<p>At Law.</p> <p>Application, under section 15, Act June 10, 1890, by the collector of the port of New York for a review by the United States circuit court of the decision of the board of United States general appraisers, reversing the decision of the said collector as to the rate and amount of duties upon certain merchandise imported by R. J. Godwin & Sons, from Liverpool, August 14, 1890. The merchandise was invoiced from Paris, France, as one Persian rug of the sixteenth century, valued at 22,000 francs, and was classified by the collector for duty as “wool rug,” at 40 per cent, ad valorem, under the provision of paragraph 378, Tariff Ind. (New Ed.) of the Tariff of March 3, 1883. The importer protested, claiming that it was duty free under paragraph 669 of free list of the same tariff, providing for “cabinets of coins, medals, and all otner collections of antiquities;” and the board of United States general appraisers, after taking evidence in the matter in behalf of the importer, reversed the decision of the collector, holding that, with the proof before them, the rúg was entitled to free entry as a single article, intended to be added to an already existing collection, and also that it was part of the collection originally purchased, and therefore came strictly within the provision of Tariff Ind. par. 669. Further evidence was also taken before one of the general appraisers as an officer of the court, pursuant to section 15 of the act of June 10,1890, and upon the return of the board of United States general appraisers, and all the evidence taken, the matter came up for review in the circuit court. The proof showed that the rug was bought in the city of Paris by the purchaser, a gentleman from New York, who owned a house in the latter city, in which he had collected numerous articles of old furniture, tapestries, bric-a-brac, etc.; that the rug was at least as old as the sixteenth century; that one other antique rug was bought by the purchaser at the same place at about the same time; that he also purchased three pieces of antique tapestries from another dealer in Paris, and, at about the same period, four oriental rugs in Constantinople; that he intended that the rug in question should be shipped with the tapestries, but by some mistake this was not done; that all these nine articles were bought by him in Europe, to be added to his collection in his house at New York; that the rug was hung up in his hall, and was not used upon the floor, and its chief value was in its antiquity. ■</p>

<p>1. FOBEiaN Extkadition — Warrant.</p> <p>Where, upon the extradition of a person charged to be a fugitivo from justice, under the treaty with Mexico, December 11, Mil, (lá St. 1199,) a warrant for his arrest is issued by the “ county j udge and extradition agent, ” the function so performed is judicial, and not administrative, and is for the purpose of preliminary examination; and the warrant is not invalid because it fails to show his authority as an extradition agent, under article 4 of the treaty, providing that within the frontier states and territories of each country the surrender may be made by the chief civil authority thereof, or by such chief civil or judicial authority of the districts or counties bordering on the frontier as may for this purpose be authorized by said chief civil authority of said frontier state or territory.</p> <p>2. Same — Necessity of Compuaint undue Oath.</p> <p>Under Rev. St. U. S. § 5270, providing that whenever there is a treaty or convention for extradition the officer designated “may, upon complaint made under oath charging any person, * * * issue his warrant for the apprehension of the person so charged, ” a sufficient complaint on oath is essential to the jurisdiction, and a warrant issued without it is void.</p> <p>3. Same — Suukendee of a State’s Own Citizens — Comity.</p> <p>In the absence of a treaty stipulation, there is no obligation, under the laws of nations, upon a sovereign state to surrender persons charged with crimes committed in another country, upon demand of the slate whose laws they have violated; and where it is provided in an extradition treaty that “neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this treaty, ” the United States will not surrender one of its citizens charged with a murder committed in one of the states of Mexico.</p>

<p>1. Elections — Hindisrino Voters at Federal Election.</p> <p>Rev. St. U. S. § 5506, making it unlawful to hinder a citizen from voting, though unconstitutional in so far as if attempts to regulate state or municipal elections, is valid as a regulation of congressional elections. Following U. S. v. Munford, 16 Fed. Rep. 223. Distinguishing XI. B. v. JReese, 92 U. S. 214.</p> <p>2. Same — Indictment.</p> <p>Hindering voters at an election is a misdemeanor only, and charges for hindering, and for conspiring to hinder, at the same time and place, may be joined in the same indictment.</p> <p>8. Same.</p> <p>An indictment under Rev. St. U. S. § 5506, making it unlawful to hinder,1 of to conspire to hinder, a citizen from voting at an election, which merply charges that defendant did hinder a certain person from voting, without setting forth the acts and method of the hindering, is too vague and general, and should he quashed.</p> <p>4. Same.</p> <p>Such defect is not cured by adding, as the method by which the voters were hindered, that defendant unlawfully challenged them, or that he consumed the time for conducting the election by frivolous interrogations, or by unlawfully creating disorder by pushing and saying disorderly and illegal things to the voters, since such acts are in themselves too general, and are not in themselves contrary to the laws of the United States. Following Ú. 5. v. Critilcshank, 92 U. S. 542.</p> <p>5. Grand J dry — Qualification.</p> <p>An officer who has issued a warrant of arrest for accused, and expressed an opinion as to his guilt, is not thereby disqualified to serve as a grand j uror, and assist in finding an indictment against him.</p> <p>6. Same — Legality—Removal or Foreman.</p> <p>The fact that the foreman of a grand jury is relieved from serving, and another appointed in his place, does not invalidate the jury.</p>

<p>On Petition for Habeas Corpus.</p>

<p>1. Patents fob Inventions — Infringement.</p> <p>Claim 1 of letters patent No. 203,528, dated April 16,1878, to Frederick Egge, for an improvement for manufacturing chain from sheet-metal by machinery, by forming the partially shaped fiat links from a plate, bringing these links (flatwise or with their broad surfaces horizontal) to the point at which they are to be connected with each other, successively threading the separate flat links through the eyes of the previously bent and partially formed links, the broad surfaces of which are vertical or at right angles to the sides of the flat links, etc., is not infringed by letters patent No. 868,275, dated August 16,1887, to Richard A. Bruel, in which, the element of an automatic feed or delivery of the blanks or flat links to the receiver which conducts them to the threading device, is wanting.</p> <p>2. Same.</p> <p>The turning device of the Egge machine, consisting of two auxiliary springs, against which the blanks strike, whereby they are partially turned, as the threading is being performed, the turn being completed by the feeding forward of the chain which pulls or draws the broad side of the link blank against the front of the bonding cavity, is infringed by the Bruel machine, in which the turn is entirely performed by the pull or feeding' forward of the chain, dispensing with the two springs.</p>

<p>Admiralty — Jurisdiction—Maritime Contracts.</p> <p>A contract with the owners to supply their vessels for the period of a year with all the provisions they might require while in the port whore the supplies are to bo furnished, is not a maritime contract, and a court of admiralty has no jurisdiction of a suit for damages for its breach by the ship-owners.</p>

<p>1. Admiralty—Jurisdiction—Injury from Steam-Boat Explosion.</p> <p>Injury to a seaman from explosion of steam-tug boiler, due to negligence of the owner of the vessel, is actionable in admiralty.</p> <p>3. Abatement—Injury to Minor.</p> <p>Death of minor from such injury survives to his father, or to his mother, if the father be dead, under Code Ala.-1886, § 3588.</p> <p><5. Steam-Boat Explosion—Prima Facie Evidence op Negligence.</p> <p>A steam-boat boiler explosion causing injuries is nrima fade evidence of negligence on the part of owners and officers; but this may be rebutted by showing due diligence in supplying suitable machinery, and officers and seamen of ordinary competency.</p> <p>¾ Same—Negligence op Fellow-Servants—Liability—Common Employer.</p> <p>If one person is injured by the negligence of another, engaged in the same employment, the employer is not liable if he has not been negligent in their selection, and has provided means and appliances adequate for their work.</p> <p>5. Steam-Boat Employes—Coon and Engineer—Fellow-Servants.</p> <p>A cook and engineer on a river steam-boat, exercising no authority the one over the other, and both subject to the master, are fellow-servants, and the cook cannot recover of the owner for damages caused by the engineer’s negligence.</p>

<p>In Admiralty.</p> <p>Libel for $1,000 freight, as per charter. Cross-libel for breach of charter and bill of lading. On February 13, 1891, Mr. Isham, on behalf of the owners of the barge Dixie, chartered her to W. L. Doughtrey to carry a full cargo of pine piles from Suffolk, Va., to Jersey City, N. J. The charter provided that—</p> <p>“The cargo should be loaded and discharged free to shipper for the lump sum of $1,000, vessel to load 10 feet of water aft, and 8⅞ feet forward, if the piles would load her down to this depth. The cargo to be received and delivered along-side, within reach of the vessel’s tackle. Eight working hours to load-.in. Demurrage $25 per day. Quick dispatch in discharging. ”</p> <p>Mr. Doughtrey had been supplying piles to Messrs. Vanderbilt & Hopkins of this city, and had contracted to sell them, among others, 400 piles of a larger size, and 200 of a smaller size, with the right to draw drafts, to be annexed to the shipping railroad receipts, to the amount of $3.50 per pile so shipped. The Dixie was chartered for the purpose of transporting as many of these piles as she could carry. In the negotiations previous to charter the owners had refused to load any definite number. The loading of the cargo being nearly completed, on the 28th of February Mr. Isham, at Doughtrey’s request, signed a bill of lading dated on that day for “300 pine piles, more or less, under deck, and 100 piles, more or less, on deck, — total, 400 piles,- more or less,” — deliverable at Jersey City to Vanderbilt & Hopkins, they “paying freight for the said piles at the rate of $1,000 for piles delivered, as per charter-party.” On the same day Doughtrey drew upon Vanderbilt & Hopkins at sight for $350 “ for ad [vanee] on 100 piles.” He had previously drawn upon them two drafts, one for $507.50, and another for $511, on the 16th and 24th of February, respectively, with railroad receipts to him at Suffolk attached. The bill of lading of February 28th was not attached to the draft of that date, but was forwarded to Vanderbilt & Hopkins: and the draft was paid, as they claim, upon the faith that 400 piles had been shipped upon the barge. On delivery the cargo was found to consist of but 310 piles, and the consignees in their answer and in their cross-libel claim to recoup against the lump sum of $1,000, freight, their damages for the non-delivery of the missing 90 piles. They subsequently obtained from Doughtrey the 90 piles, but they claim as damages the expenses of transporting them from Suffolk, as well as the necessary expenses of a man sent to obtain them, and also certain consequential damages arising from the delay in supplying these piles to a Mr. Gillies, to whom they had sold them, and who, in order to fulfill his own contract, was obliged, as he says, to purchase the missing 90 piles at a higher price, in consequence of which he had claimed damages against Vanderbilt & Hopkins. Four days’ demurrage was claimed for the barge for detention at New York before beginning to unload.</p>

<p>Salvage—Derelict Scow—East River—Damage to Third Boat.</p> <p>About 2 o’clock in the morning oí March 25, 1891, those on libelant’s tug-boat Mercedes perceived a capsized mud-scow adrift in the East river. With great difficulty, owing to the unwieldy nature of the scow, the tug pushed and guided the scow to the end of pier 10, breaking a hawser in the attempt. The tug then went for aid, and while she was gone the scow broke adrift from the pier, and damaged a schooner. It was afterwards picked up by three tugs belonging to the same owner as the Mercedes, and taken to Jersey City. The value of the scow was $3,200 to $4,000. Held, that the owner of the tugs should recover $600 as salvage, from which should be deducted the amount paid by claimant for the damage to the schooner.</p>

<p>1. Collision—Fog—Ferry-Boat—Obstruction near Blip.</p> <p>Ferry-boats being obliged from public necessity to make trips even in dense fog, other boats that unnecessarily obstruct the usual modes of approach to their ferry-slips, under such circumstances, should be held solely in fault for collision, where ' the ferry-boat is managed with skill and j udgment.</p> <p>2. Same—Case Stated—Imprudent Navigation—Danger Signals.</p> <p>The ferry-boat O., running from Barclay street to Hoboken, in a dense fog, first made on the Jersey shore the masts of some lighters about 500 feet below her slip, and thence proceeded in the usual manner, not far from the ends of the wharves, towards her slip. The tug M. H. had started from a whaff on the Jersey shore about a mile above, with the barge C. on her starboard side, in the fog, and, after twice hauling up at intermediate wharves on account of the density of the fog, put into pier 3, about 300 feet below the ferry-slip, a few minutes before the O. came along. The M. H. might have gone inside of the slip above, but made fast at the end of pier 3, with her bow loose, and angling outward two or three points, and in that position the O. ran upon the barge, which was visible only 100 or 200 feet before she was struck. No sígnalo were given,by the M. H., except danger signals, too late after the ferry-boat was seen. Held, that the tug, and not the ferry-boat, was in fault for unnecessary and imprudent navigation in dense fog, for not going into the slip, for taking a dangerous position at the end of the pier, and for not giving warning signals.</p>

<p>1. Collision—S-team-Vessels Crossing—Unanswered Whistle—Duty to Stop.</p> <p>A tug, with a tow on her port side, was crossing the course of a ferry-boat at night, the ferry-boat having the tug on her starboard hand. The tug blew one whistle to the ferry-boat, received no reply, but kept up her speed; blew again to the ferry-boat, and, again receiving no reply, rang to hook up the engine, in an endeavor to pass ahead of the ferry-boat. Collision followed between the lattor and the tow. Held, that the fact that no reply to her signal came from the ferry-boat was notice to her that her signal had not been heard, and it was her duty to stop at once.</p> <p>2. Same—Disappearance of Red Light—Rights of Crossing Vessel.</p> <p>The vessels being on crossing courses, and the ferry-boat having the tug on her starboard hand, the lug claimed that it was her right to keep on, and the duty of the ferry-boat to stop. As the vessels approached, the red light of the tug, for some unexplained reason, disappeared from the view of those on the ferry-boat. Held that, if the red light of the tow was not displayed, the ferry-boat was under no obligation to stop, but was justified in proceeding as she did.</p>

<p>Collision—Steam-Vessels Crossing—Vessel Backing Out of Slip.</p> <p>Where a steam-tug was moving at a high rate of speed near the piers in the Kill von Kull, and struck and sunk a vessel which was backing out of a slip, giving a long whistle as she backed, it was held that the collision was due to inattention on the part of the passing vessel, which rendered her liable for the collision.</p>

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

<p>Motion to Remand to State Court.</p>

<p>Allowance for Value of Permanent Improvements on a Bill to Redeem.</p> <p>On a bill to redeem from the purchaser at a void sale, in a suit to enforce the lien of .a mortgagee, or his assignee, the defendant is entitled to an allowance for the value of permanent improvements placed on the premises.</p> <p> (Syllabus by the Court.) </p>

<p>L Attorney and Client — Lien on Papers fob Services.</p> <p>The attorney of a railroad company, who in the course of his regular duties has negotiated conveyances of the right of way and has received conveyances thereof, and has also negotiated donations of property for depot purposes and received conveyances thereof executed in his name as vendee, has a lien upon such papers for his salary and legitimate expenditures about the business, and may retain possession of them until such charges are paid.</p> <p>2. Railroad Mortgage — Priority of Liens.</p> <p>But in the foreclosure of a mortgage of the railroad such lien will not be held to extend to the corpus of the property, or to authorize "the payment of his demand out of the funds in the hands of the receiver before the claims of the bondholders are paid.</p>

Bill in equity by Jane Atmore, administratrix, and the heirs at law of Ann Jones, deceased, a legatee under the will of Joseph Dean, against John H. Walker, administrator d. b. n. c. t. a. of Joseph Dean, deceased, and the heirs at law of Joseph Dean, and creditors of his estate, to determine whether said legacy was vested or contingent, and, if vested, whether or not a charge upon the real estate, owned by Joseph Dean at the time of his death.

<p>CONSPIRACY — Trust Combination — Interstate Commerce.</p> <p>• An agreement between coal mining companies operating chiefly in one state and dealers in coal in a city in another state, creating a coal exchange to advance the interests of the coal business, to treat all parties to the business in a fair and equitable manner, and to establish the price of coal, and change the same from time to time, by which it was agreed that the price of the coal at the mines should be 4⅛ cents, the freight being 4 cents, and the margin of the dealer should be 4⅛ cents, making the price to the consumer 13 cents, and that, whenever the price of the coal is advanced beyond an advance in freights, one-half the advance shall go to the mine owner, and the other half to the dealer, and a penalty was provided by fine, of any member selling coal at a less price than the price fixed by the exchange, and by which it was forbidden for owners or operators of mines to sell coal to any person other than members of the organization, and for dealers to purchase of miners who were not members, but exempting coal used for manufacturing and steamboat purposes from the prices prescribed until all the mines tributary to that market should come into the exchange, or until the exchange could .control the prices of coal used by manufacturers, is within the language of Act Cong. July 3,1890, declaring “every contract or combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several states, ” and also the monopolizing,- or combination with another to monopolize, trade or commerce among the several states, a mis.demeanor.</p>

<p>1. Attachment — Motion to Dissolve.</p> <p>Motion to discharge, under statute of Idaho, may he for the irregularity of its issue, even after the attached property has been redelivered to the defendant upon Ms giving the counter-undertaking provided for hy statute.</p> <p>8. Same — SurarciENcr or Ajketdavit.</p> <p>Affidavit is sufficient which alleges that plaintiff has no security by mortgage or lien upon real or personal property, although it omits the other statutory clause, “or pledge of personal property. ”</p> <p> (Syllabus by the Court.) </p>

<p>1. Foreign Live Insurance Company — Lex Loci Contractus — Stipulation against Suicide — 'Validity.</p> <p>A life insurance company chartered in the state of Illinois carried on its business in the state of Missouri through agents appointed for that purpose. The method of doing business was this: The agent in Missouri would solicit and receive Ironj citizens of that state applications for insurance, which he would forward to tj home office of the company at Chicago. When an application was approved, aj icy was filled up, dated, and signed by the officers of the company at Chicagoj transmitted by mail to the agent of the company in Missouri, who, upon thel ment to him by the applicant of the first premium, called in this case an “ entq fee, ” delivered the policy to the assured. Upon these facts, held: (1) Ti " company was “ doing business ” in the state of Missouri within the meaning ol words in section 5982 of the Revised Statutes of that state; (2) that the polf a Missouri, and not an Illinois, contract, and that the validity and legal eitej stipulations must be determined by the laws of Missouri; (8) that a stipui such a policy that “in case of the sell-destruction of the holder of thil whether voluntary or involuntary, sane or insane, * * * this policy « come null and void, ” is void under section 5982 of the Revised Statutes of Si which declares such a stipulation in a policy issued by “ any company doil ness in this state shall be void; ” (4) that the statute is mandatory and J and cannot be waived or suspended by convention of the parties, or by anj| whatsoever.</p> <p>8. Same — Doing Business Contrary to Law — Validity of Policy — Estoppel!</p> <p>If a life insurance company of one state does business in another state i doing those things which the law of the state requires to be done by a fon surance company to qualify it to do business therein, the company and it/ and agents incur the prescribed penalties, but its policies are binding on the company, and may be enforced by the holder in the same manner and with like effect as if it had qualified itself to do business in the state. In a suit by a policy-holder the company is estopped to deny that it was authorized to do business in the state.</p> <p>8. Same — Life Indemnity Company.</p> <p>■ “ The Knights Templars’ & Masons’ Life Indemnity Company, ” a corporation oi the state of Illinois, is not “a co-operative benevolent insurance society, ” nor “a fraternal brotherhood having a community interest, ” — whatever these phrases may mean, — but is an incorporated life insurance company on the co-operative or assessment plan, not for mutual benevolence, but for mutual insurance, and as such it comes within the purview of the statutes of the state of Missouri relating to life insurance companies.</p> <p>If ote. Since the opinion in this case was filed, the supreme court of the United States has decided the ease of Equitable Life Assurance Soe. v. Pettus. The opinion of the circuit court in that case is reported under the title of Wall v. Society, 112 Fed. Rep. 273. The supreme court affirmed the judgment of the circuit court, and say: “ Upon this record, tho conclusion is inevitable that the policy never became a completed contract, binding either party to it, until the delivery of the policy and the payment of the first premium in Missouri; and consequently that the policy is a Missouri contract, and governed by the laws of Missouri.” Referring to the Missouri statute prescribing the rules for the commutation of life policies upon which two full annual premiums had been paid, tbe court say: “The manifest object of this statute, as of many statutes regulating the form of policies of insurance on lives or against fires, is to prevent insurance companies from inserting in their policies conditions of forfeiture or restriction, except so far as the statute permits. The statute is not directory only, or subject to be set aside by the company with the consent of the assured; but it is mandatory, and controls the nature and terms of the contract into which the company may induce the assured to enter. ” It follows that the insertion in the policy of a provision for a different rule of commutation from that prescribed by the statute, in case of default of payment of premium after three premiums have been paid, as well as the insertion in the application of a clause by which the beneficiary purports to “ waive and relinquish all right or claim to any other surrender value than that so provided, whether required by a statute of any state or not, ” is an ineffectual attempt to evade and nullify the clear words of the statute. The opinion was delivered May 11, 1891, and will probably appear in volume 140 of United Slates Reports.</p>

<p>At Law.</p> <p>This is an action on an accident insurance policy. The assured, Willoughby L. Dozier, on the 26th day of April, 1890, took out a policy of insurance in the defendant company, which, by its terms, would expire on the 26th day of April, 1891. The assurance was “against bodily injuries sustained through external, violent, and accidental means.” It did not cover “any disease or bodily infirmity.” The insured was, by occupation, a supervising architect. The petition, by his wife, the named beneficiary, alleges that the assured, while in the discharge of his ordinary avocation, and without any voluntary exposure on his part, came to his death on the 23d day of June, 1890, “by sun-stroke or heat prostration.” To this petition the defendant demurs, on the ground that the petition does not state facts sufficient to constitute a cause of action, in that it shows on its face that the alleged injury was not accidental, within the meaning of the policy.</p>

<p>1. Assignment foe Benefit of Creditors— Expense of Administration — Mort gages.</p> <p>Where by an assignment for benefit of creditors members of a creditor firm were made assignee and agent for creditors,' and it appears upon the settlement of their accounts that a number of mortgages, both of chattels and real estate, had been made to their firm by the insolvent, the expenses of realizing upon the chattel mortgage are properly charged to the creditor firm, since by such mortgages the chattels became the property of the mortgagees, and the only interest which passed to the assignee was the right to demand any surplus remaining on foreclosure; and the expenses of foreclosing the mortgages of real estate were properly charged against the estate, since a mortgage of realty is in South Carolina a mere security, and the title remains in the mortgagor, and passed by the assignment for benefit of creditors.</p> <p>8. Same — Expenses of Assignee.</p> <p>Where the bulk of the assigned estate consisted of lands in South Carolina, and the assignee and agent for creditors both resided in New York, traveling and living expenses in going to and from their homes are not legitimate items of expense tobe charged against the estate.</p> <p>8. Same — Commissions.</p> <p>Notwithstanding the assignee and agent for creditors are members of a creditor firm, they are nevertheless entitled to commissions on so much money as was paid the firm from the mortgaged realty.</p>

<p>1. DISTRICT ATTORNEYS — COUNSEL FEES.</p> <p>Under Rev. St. U. S. § 824, which provides that “when an indictment for crime is tried before a jury, and a conviction is had, the district attorney may he allowed a counsel fee in proportion to the importance and difficulty of the case, not exceeding 830, ” the accounting officers of the treasury department have no power to reduce or disallow such counsel fees when they have heen allowed by the district court in which the trials were had.</p> <p>8. Same — Jury Trial.</p> <p>Under Rev. St. U. S. § 824, cl. 1, which allows a district attorney in a trial before a jury a fee of $20, the fact that the jury disagreed does not deprive the district attorney of his right to such fee.</p> <p>8. Same — Mileage.</p> <p>Where a district attorney goes from a place where he is engaged at the district court to a place whither he is officially called to appear before a commissioner, he is entitled to mileage for the distance so traveled, where such distance is less than that from his home to the place where the commissioner sits.</p> <p>4. Samf — Attachment eor Contempt.</p> <p>An attachment for contempt, in which a district attorney properly and necessarily appears for the government, is an independent suit, in which he is entitled to his statutory fees.</p> <p>5. Same — Presentation to Treasury Department.</p> <p>The act of congress, which requires the accounts of district attorneys to he forwarded “ when approved ” to the proper accounting officers of the treasury depart ment, does not make presentation to such officers a condition precedent to an action against the government on such an account. Following Erwin v. XI. S., 37 Fed. Rep. 470.</p>

<p>School Funds — Judgments—Orders on Treasurer.</p> <p>Orders on the treasurer of a sohool-district, directing him to pay certain judgments, issued under Code Iowa, § 1787, providing that, “when a judgment has been obtained against a school-district, the board of directors shall pay off and satisfy the same from the proper fund by an order on the treasurer, ” are not evidences of debt independent of the judgments on which they are based, and payment cannot be enforced without refex-ence to the ownership of the judgments; and a demurrer to a petition thereon by an assignee, in which it is not averred that the judgments have been paid or canceled, on the ground that it fails to state a cause of action, must be sustained.</p>

<p>1. Customs Duties—Entby and Classification—Change by Customs Offices.</p> <p>The action'of the customs officer in placing goods in a class other than that in which they were entered, in deciding that they were altered from the ordinary condition in which they were customarily imported in 1883, and that such alteration was made to evade duty, is prima.facie evidence of each of these facts.</p> <p>8. Same—“Wool Waste.”</p> <p>“Wool waste, ” as employed in the tariff acts, signifies such parts or particles of wool as are thrown off in the several processes of manufacture of wool in wool or worsted fabrics, and does not include wool which has been prepared for spinning, and artificially and intentionally made into a form like such parts or particles, even if sometimes called “waste” by the trade.</p> <p>8. Same — “Wool Tors. ”</p> <p>“Wool tops ” torn up into fragments are not a “manufacture of wool. ”</p> <p>4. Same — “Wool Scoured. ”</p> <p>If wool is imported scoured, although in a form not commercially known as “scoured wool, ” and if its condition is different from that in which wool was customarily imported prior to the date of the act of 1883, it is dutiable as “wool scoured, other than ordinary conditions. ”</p> <p>5. Same — Change to Evade Duty — Double Duty.</p> <p>Where wool imported has been changed from one condition to another for the purpose of evading duty, whether the condition in which it was entered was a customary condition in which wool was imported prior to the date of the act of 1883, or not, it is subject to double duty.</p>

<p>At Law.</p> <p>Assumpsit by the United States against Ferdinand Phillips el al., trading as Phillips, Townsend & Co., to recover the sum of $2,224.75 for an alleged balance of customs duties due upon an importation of steel wire rods, imported into the port of Philadelphia upon October 3, 1889. The merchandise consisted of 9,663 coils and 9,842 coils, and were entered at the valuation of $14,825, at 45 per cent, ad valorem. Upon October 7, 1889, the entry was made and the estimated duties paid and a permit to deliver the goods after appraisement and examination given to the defendants custom-house broker. The entry and invoice under treasury regulation No. 449, relating to bulky articles was indorsed that the examination should be made upon the wharf, and no packages were specified as examination packages. Upon receipt of the invoice at the appraiser’s office, examination of the goods was made, and subsequently upon October 14, 1889, upon presentation of the' permit to deliver, all of the goods passed into the defendants’ possession. At this time the usual bond for the return of the goods within 10 days after appraisal, if required by the collector, was executed by the defendant. No request for the return of the goods was made within the 10 days, and they were afterwards consumed in the importer’s factory. Upon October 30, 1889, the appraiser returned upon the lot of 9,663 coils an advance in value of 15 6-10 per cent., and under Rev. St. § 2900 an additional duty at 20 per cent, was thereupon exacted, amounting to the sum of $2,224.75 for which the suit was brought. Upon November 4, 1889, notice of the additional duty exacted was sent to the importer from the custom-house pursuant to treasury regulation 462, and upon the same day notice was received from the importer claiming reappraisement under Rev. St. § 2930. The collector in accordance with treasury regulations asked for a special report of reappraisement by the appraisers, which report was made November 7,1889, affirming the former ap-praisement. The collector after successively appointing several merchants as merchant appraisers, all of whom declined to serve, selected a merchant who consented to serve, and February 21, 1889, was fixed for the merchant appraisement. No report was ever signed by the merchant appraiser, but upon February 21, 1889, the general appraiser wrote to the collector that a reappraisement was impossible because of the importer’s omission to keep samples of the importation, and upon March 14, 1890, a liquidation in accordance with the examiner’s original return was made by the collector of the port, showing the balance to be due for which the suit was brought. Upon March 22, 1890, a protest by the importer was filed, claiming that no advance in value could be made which does not carry the right to a reappraisement pursuant to Rev. St. § 2930; that in order that a valid reappraisement could be made samples of the goods must be then and there examined; that it was the government’s duty to retain and preserve samples, and that inasmuch as the importer had requested a reappraisement under Rev. St. § 2930, it was the duty of the government officials to take every step necessary in order to'effectuate a valid reappraisement, and that whether the goods were to be examined upon the wharf or not, it was the duty of the collector of the port upon 'entry thereof, to specify examination packages which should thereupon be retained.</p> <p>That the permit to deliver all of the goods was issued upon October 7,1889, at the importer’s request, and the inspector, upon presentation of that permit by the importer upon October 14, 1889, had no discretion to return samples for a subsequent reappraisement, and that it was the importer’s place to retain samples if thereafter he intended to apply for a merchant’s reappraisement under Rev. St. § 2930.</p> <p>No liquidation can be made while a merchant appraisement is pending. Tucker v. Kane, Taney, 146-151. No reappraisement is valid unless made on inspection of the goods or the examination packages. Qreeley v. Thompson, 10 How. 225; Converse v. Burgess, 18 How. 413; Iron Co. v. Iiedfleld, 23 Fed. Rep. 650. It was the duty of the collector either to retain examination packages or to ask for their return, in accordance with the condition of the bond; and if because of his failure to retain them no reappraisement can be had, the additional duties cannot be collected.</p>

<p>1. Customs Duties — Forfeiture—Fraudulent Valuation.</p> <p>In an information by the government for the forfeiture of goods on account of fraudulent undervaluation, the burden of proof is on the government to show, first, that the representations made in the invoice, affidavits, etc., were false, and, second, that they were known by the olaimant to be so, and were made to defraud the government.</p> <p>2. Same — Burden of Proof.</p> <p>Where goods were entered as “cattle hair, ” and represented to be such by the claimant, the burden of proof in a suit on information to forfeit them for fraudulently designating them as such is on the government, which must show that they are in fact something else, and that the claimant so knew, and entered them as hair to defraud the government.</p>

<p>Customs Duties — Action to Recover.</p> <p>The right of action to recover duties and charges illegally exacted (Rev. St. IT. S. § 8011) is purely statutory. Id. §§ 3931,3933, require the importer, as a condition precedent to the maintenance of suit, to duly file his protest upon each entry, and seasonably prosecute his appeal from the decision of the collector to the secretary of the treasury. Held, that a stipulation made between the importer and deputy-collector, after due protest and appeal in the case of one entry, that the duties and charges in succeeding entries should be controlled by the decision of the secretary therein, is not a substantial compliance with the requirements of the statute, and the importer could not maintain suit after a decision in his favor by the secretary, and a refusal of the collector to abide by the stipulation.</p>

<p> Habeas Corpus. </p>

<p>1. INFRINGEMENT OF PATENTS — DAMAGES.</p> <p>’ An infringer is liable only for profits or savings actually realized by him from the use of the patented invention, and shown by olear and definite proof.</p> <p>8. Costs on Accounting.</p> <p>Where a master, acting under a decree for an account of profits and damages, reports that the defendant has made no profits, and that the plaintiff is entitled only to “ nominal damages, with costs, ” the court, in confirming his report, allowed full costs to the plaintiff.</p>

<p>1. Patents fob Inventions — Anticipation—Process fob Raising Cream.</p> <p>Letters patent No. 187,516, issued February 30, 1877, to William Cooley for a “process of treating milk for raising cream by sealing with water and air the cover applied directly to the vessel containing the milk, ” was not anticipated by earlier patents for coolers for preserving milk by a similar process, since the latter process was not designed and never used for raising cream.</p> <p>8. Same — Infringement.</p> <p>A purchase of a creamery from the patentee, with cans for raising cream by his process, gives the purchaser no right to practice the process by water-sealing other cans purchased from a different manufacturer.</p>

<p>Salvage—Broken Shaft—Towage—Fog—Service Ended before Reaching Port.</p> <p>The steam-ship V., with cargo and freight worth $375,000, and 600 passengers, on a voyage from Rotterdam to New York broke her shaft 900 miles east of Halifax. La F., in answer to signals of danger, took her in tow for 3 days, when the V., having repaired her shaft, steamed ahead, outran La F., and became lost in the fog about 9:80 p. m., not renewing signals, or seeking to keep La F.’s company. The next morning La F., not being able to find the V.. and supposing her to have gone ahead, resumed her voyage. A half hour after the V. disappeared in the fog her shaft again gave way, and after 24 hours delay it was again repaired, so as to enable her to steam into port. La F. was worth $200.000. The towage was in part through fog, and in circumstances of special danger. Held, (1) that the service rendered was of a salvage nature; (2) that the acts of the V. amounted to a termination by her of the salvage service before reaching port; that LaP. fulfilled her duties; that there was no abandonment by her of the salvage service; and $3,500 was awarded her.</p>

<p>Collision—Steam-Vessels Meeting—Attempt to Pass Starboard to Starboard— Assent.</p> <p>Two steam-vessels, the P. and the K., were meeting head on. The P., determining to pass starboard to starboard, blew two whistles, and starboarded, without waiting ior the assenting whistle of the K. On perceiving that the K. had not starboarded also, the P. again changed her wheel, and attempted to pass port to port, but the vessels collided. Held, that the P. was in fault for attempting to pass contrary to rule, without awaiting the assent of the other vessel.</p>

<p>Federal Courts — Jurisdiction—Federal Laws.</p> <p>The laws of a state respecting the enforcement of judgments, adopted, pursuant to Rev. St. IT. S. § 916, by a rule of the federal district court for the government of judgment liens of such court, and for the guidance of the marshal in levying executions, derive their force from the United States, and not from the state; and a suit involving the question whether or not the marshal’s proceedings in levying an execution issued out of the federal court was in conformity with such rule is a question arising under the laws of the United States, and cognizable by the federal courts.</p>

<p>Security for Costs — Delay.</p> <p>... A motion for security for costs which is in effect an application for security as to extraordinary disbursements growing out of an order of reference, and which were not in contemplation of either party at an earlier stage of the case, will not he denied on the ground of delay, because not made until after the entry of the order of reference.</p>

In Equity. “Bill by Manuel Jesus Galbes, a citizen of Chili, against James If. Girard and others. The bill alleged that Juan Galbes died in California in 1874, owning real and personal property in the state, and leaving surviving him Lorena Gamboa Galbes, his wife, and a son, plaintiff in this action. The bill then alleged that, in pursuance of a conspiracy, letters of administration were in 1874 fraudulently granted to one Howe, without notice to the widow or plaintiff.

In Equity. Bill in equity by the Sioux City & St. Paul Railway Company and the Chicago, Milwaukee & St. Papl Railway Company and certain settlers upon the land in dispute, to adjust certain land grants and cross-bills by the Chicago, Milwaukee & St. Paul Railway Company and by the settlers.

<p>Negligence op Servant — Liability op Master</p> <p>Where plaintiff was injured by the negligence of a truck-driver in the employment of defendant, but who was on that day serving another company under a contract which defendant had made with the latter to furnish it daily with a horse, truck, and driver, defendant, and not the other company, is liable for the injury.</p>

<p>Receivers — Actions against.</p> <p>An action for personal injuries sustained before the appointment of a receiver cannot be maintained against him, but must be brought against the corporation.</p>

<p>Internal Revenue — Distilled Spirits — Liability op Stockholders op Distillery Corporations.</p> <p>The stockholders of a corporation engaged in operating a distillery are “persons interested in the use of the distillery, ” within the meaning of Rev. St. U. S. § 8251, which declares that every proprietor and possessor, “ and every person in any manner interested in the use, of” a distillery, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom.</p>

At Law. Arnold, Constable & Co., of the city of New York, imported certain merchandise by the steamer Alaska on October 13, 1890, consisting of woolen or worsted undershirts, drawers, hosiery, etc., upon which the collector of the port of New York assessed duty at the rate of 49⅛ cents per pound and 60 per cent, ad valorem, under the provisions of paragraph 396 of the tariff act of October 1, 1890.

<p>Removal oe Causes — Against National Bank — Keceivekship.</p> <p>A suit against a national bank to reach property held as a part of its assets by its receiver, appointed by the comptroller of the currency, arises under the laws of the United States, and may be removed from the state court into the federal court.</p>

<p>Rescission op Contract — Equity Jurisdiction — Remedy at Law.</p> <p>In a suit against a county and its agent the bill alleged that said agent induced complainant to buy bonds of the county by the false representations that they were issued to refund indebtedness, all of which had been in judgment against the county; that whether any of the bonds represented indebtedness which was enforceable against the county could be determined only by an investigation of the county’s financial history for many years past; that when said bonds were issued, the legal limit of indebtedness had already been exceeded; that the county denied the validity of the bonds. The prayer was for a rescission of the contract of sale, the bonds being tendered back, and for a judgment for the amount paid. Held, that the bill failed to show a case within equitable jurisdiction, as an action for money had and received would accomplish all that was sought save the rescission, which was unnecessary.</p>

<p>Amass — Right to Take by Descent.</p> <p>....... Laws N. Y. 1845, c. 115, as amended by Laws 1874, c. 261, provides that those aliens who, according to the statutes oí New York, would answer to the description of heirs may take by descent irom any alien resident, or any naturalized or native citizen oí the United States, who has “purchased” and taken, or shall hereafter “purchase” and take, a conveyance oí real estate. Held, that the statute gives the right of transmission by descent only to resident aliens and naturalized or native citizens, that it attaches only to land acquired by purchase, and that it contemplates only one step oí transmission to alien heirs.</p>

<p>Customs Duties — Articles Composed op Agate and op Tiger Eye or Crocidolite.</p> <p>Agate pen-holder handles, tiger eye or crocidolite pen-holder handles, and other agate articles and other tiger eye or crocidolite articles, that were manufactured by a process called “cutting” from crude stones at and prior to the passage of the tariff act of March 3, 1883, (23 U. S. St. 488,) known to trade and commerce of this country as agate and tiger eye or crocidolite, and as varieties of precious stones, and that were at such times, in such trade and commerce, bought and sold, respectively, under the names of agate pen-holder handles, tiger eye or crocidolite pen-holder handles, and other similar descriptive names, were not dutiable at the rate of 20 per centum ad valorem as “non-enumerated manufactured articles,” under the provision for “ all articles manufactured in whole or in part, not herein enumerated or provided for, ” contained in section 2513 of the aforesaid tariff act of March 3, 1883, but were dutiable at the rate of 10 per centum ad valorem as “precious stones, ” under the provision therefor contained in Schedule Ñ of that act.</p>

<p>At Law.</p> <p>The firm of L. Straus & Son on October 11 and 29, 1890, imported by the Polynesia and Arabia certain Bohemian glassware, which was duly entered at the port of New York and classified and assessed by the collector of customs at that port at 60 per cent, ad valorem, as an “article of glass, colored,” under paragraph 106 of the tariff act of October 1, 1890. The importers protested, claiming that the said goods were dutiable under Schedule B, par. 143, of the tariff act of March 3, 1883, at 45 per cent, ad valorem as “Bohemian glass,” and claiming that said merchandise, being specifically mentioned or enumerated in said act of October 1, 1890, the former act was still in force, and applicable to the particular merchandise in suit. An appeal was taken by the importers from the decision of the collector to the board of United States general appraisers, under the provisions of the act of June 10, 1890. The board of general appraisers affirmed the decision of the collector. The importers then applied for a review of the decision of the said board by the United States circuit court. The board of general appraisers in their return to the court found that “the merchandise under consideration is commonly known as Bohemian glassware, well recognized under this description in the trade and in popular parlance,” and that “the present tariff law does not provide for duty on it by enumeration o nomine, as prior tariff acts had done for many years.” They also found “that Bohemian glassware imported since October 6, 1890, although omitted to be named by specific mention, is provided for and made dutiable under paragraphs 106 or 108 of the new tariff act, according to the nature of the article, and not under the act of 1883.”</p>

<p>1. Patents foe Inventions — License—'Assignment.</p> <p>Where a patentee for a stipulated royalty granted an exclusive license to manufacture and sell under his patent, and subsequently, with the knowledge of his licensee, assigned for a valuable consideration a portion of the royalty, he cannot, by a secret assignment to the licensee, cut oil the rights of such third party</p> <p>2. Same — Notice.</p> <p>A subsequent assignment by the licensee to a third party having knowledge of the facts will not free the patentee or said third party from the obligation to pay the portion of the royalties so conveyed. The latter took subject to the obligation to pay such royalty.</p>

<p>1. Patents foe Inventions — Infringement—Lens-Holders.</p> <p>The manufacture of lens-holders hy defendant, which operate In substantially the same manner as those covered by complainant’s patent, is an infringement, though defendant’s holders are composed of a smaller number of parts than complainant’s.</p> <p>2. Same — Injunction.</p> <p>An injunction will issue against one who has already infringed a patent, though he denies that he intends to make any further infringement during its term.</p> <p>8. Same.</p> <p>The part manufacture of lens-holders, not constituting an infringement, with intent to complete into the patented article immediately on the expiration of the patent, will not be enjoined, as complainant’s monopoly exists only during the life of his patent.</p>

<p>Maritime Liens — Enforcement—Laches.</p> <p>A maritime lien for repairs, based on a running account extending over nearly four years, during the whole of whieh time the account was largely reduced by payments made with considerable regularity, the last within a week before the libel to enforce the lien was filed, is not barred by laches, though the last repairs were made nearly a year before the filing of the libel; and the claim of the libel-ant should not be postponed to those of other lienors, who made repairs and furnished supplies to the vessel while the payments to libelant were being made.</p>

<p>1. Removal oe Causes — “Local Prejudice ” — Counter-Claim.</p> <p>A non-resident plaintiff, suing in the state court, against whom a counter-claim is brought, becomes thereby a “ defendant, ” within the provision oí the removal act oí congress (25 U. 8. St. 485) that in a controversy between citizens of the state where the suit is brought and citizens of another state any defendant, being such citizen of another state, may remove the suit into the United States circuit court on the ground of prejudice and local influence, and the case is removable on his petition.</p> <p>8. Same — Evidence oe Prejudice.</p> <p>Though the existence of prejudice and local influence must be made to appear in such a way that the court will be legally satisfied of the truth of the allegation, yet, where the affidavits in support of the petition state the facts upon which affiants’ belief is founded, and, when considered in connection with opposing affidavits, show that there did exist such “prejudice and local influence” as would prevent petitioner from obtaining justice in the state court, the order of removal should be granted.</p>

<p>Specific Peefoemance — Inequitable Contract.</p> <p>A testator directed that 850,000 should ho placed at interest for the benefit of hfe wife during her lile, and at her death the principal to ho divided equally among' his three younger children, 15., J., and K.; that 880,000 should he placed at interest,, and tho income paid to his eldest son G-. during his lile; that his executors should sell real estate, and place the first 8100,000 received therefrom at interest, $50,000 each lor J. and K.; that all the rest of his property should be divided equally among the three younger children; that his homestead should he kept up for tho younger children and widow; and that subject to this right, it was to he included in the residue of the estate. The testator’s personalty amounted to §180,000, and the real estate to §355,000. E., who was one of the executors, took charge of the personalty, put §50,000 at interest for his mother, and §30,000 for his brother G., and paid each of his sisters §3,000 per annum. The widow died, and he took possession of the§50,-000 hold in trust for her. The sisters finally received §50,000 each from him, and, being unable to obtain any further settlement, they sued him, pending which he died, leaving a will by which he gave the rest of his estate to his brother G-. to the exclusion of his sisters, from whom he had become alienated, but who at that time were each entitled to at least §100,000 from him. The complainant then, as the representative of G., whose executor he afterwards became, negotiated the contract in suit with defendants J. and K., by which they, in terms, gave np their claim against E.’s estate, the $50,000 already received by each of them, and their right under their father’s will to have $50,000 apiece raised for them out of the real estate, and agreed that G. should stand on an equality with them, not only as against E.’s estate, hut also as against their father’s estate from the time of his death. The defendants testified that they did not understand the effect of tho agreement when they signed it; that they wore dissuaded by complainant, in whom they had absolute confidence, from consulting counsel; that their solo intent was to divide up with their brother G. “what was left” of their father’s estate, and not to surrender anything they had already received. In pursuance of tho agreement, the assets in E.’s hands at his death, §880,088, was divided into three parts, and distributed between J., K., and G. Held, that the contract, according to tho evidence, was obtained by misrepresentation and deception, and was manifestly inequitable, and the court would not decree a specific performance of it further than it already had been performed by the parties.</p>

<p>1. Injunction — Practice.</p> <p>• The court, in determining the question of granting a temporary restraining order or a perpetual injunction, is governed solely by the laws of congress, the rules of the supreme court regulating equity practice, and the general rules of procedure in equity cases applicable to the equity practice in the courts of the United States.</p> <p>2. Same — Jurisdiction—Federal Question.</p> <p>The court has jurisdiction of this case because it involves a federal question. The rights of the parties arise under a law of the United States, and involve the construction thereof.</p> <p>8. Same — Temporary Restraining- Order.</p> <p>After the passage of the act of congress of 1793, and prior to the act of June 1, 1872, a temporary injunction or restraining order could not be granted without notice to the adverse party. But by the seventh section of the act of congress of June 1,1872, which is now section 718 of the Revised Statutes of the United States, if a bill is filed for an injunction, and a subpoena issued notifying a defendant to appear on a rule-day, and if in the mean time there is danger that irreparable injury may be committed, the court, in the exercise of a sound discretion, will issue a temporary restraining order without notice.</p> <p>4. Jurisdiction in Equity — Adequate Remedy at Law.</p> <p>By section 723 of the Revised Statutes of the United States, suits in equity will not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. This section of the statute is merely declaratory, and made no change in the pre-existing law. It serves merely to emphasize the rule already existing.</p> <p>5. Same — Continued Trespass.</p> <p>Ii the remedy at law is notas plain, adequate, and complete as one obtainable in equity in case of a continued trespass, the party may prevent the injury by injunc* tion, rather than wait until it is done, and then look for Ms damages in a court of law.</p> <p>6. Same.</p> <p>To bar equitable relief tbo legal remedy must be equally effectual with the equitable remedy as to all the rights of a complainant. Where the remedy at law is not as practicable and as efficient to the ends of justice, and its prompt administration, the aid of equity may be invoked.</p> <p>7. Injunction — Restraining Irreparable Damage.</p> <p>The courts will interfere by injunction to prevent wrongs of a repeated and continued character, but which occasion damages which are estimable only by conjecture, and not by an accurate standard; that this is what is meant by irreparable damages or mischief, when we use the expression in connection with an application for an injunction. If the damage is irreparable, it presents a state of case where the party, in the sense of section 733 of the Revised Statutes of the united States, does not have a plain, adequate, and complete remedy at law; for, if he has such remedy, the damage is not irreparable.</p> <p>8. Same — Taking Private Property without Compensation.</p> <p>An attempt by a railroad company to build its road upon private property without payment of compensation may be prevented by injunction.</p> <p>9. Same — Easements.</p> <p>The lands taken by defendant in this ease were taken in invitwm, and defendant only acquired an easement to the land, and only such a one as the act of congress authorized. If the use of the lands of plaintiffs for an approach for a wagon-road and foot bridge is a use not authorized by congress, and it injuriously affects the lands of plaintiffs, then it is a new and unauthorized use, which, because it injuriously affects their lands, becomes a supervening servitude, which amounts to a taking of their property, and for which taking they are entitled to compensation.</p> <p>10. Eminent Domain — Compensation.</p> <p>Private property, under the constitution of the United States, can he taken for public use only with just compensation.</p> <p>11. Same — Purpose op Taking — Extension.</p> <p>A use beyond the purpose of a first condemnation of land by right of eminent domain cannot be included in the first use if not authorized by law to be so included, and such use creates a new servitude if it casts on the land already condemned an additional burden. If such second use affects the value of said land to an extent to which it was not affected by the original taking, then it subjects the land to a new servitude, and there is a taking of private property which has not been paid for.</p> <p>12. Same.</p> <p>When private property is taken for public use the owner is entitled to full compensation, which means the fair market value of the property at the time of the taking.</p> <p>13. Same — Estimate of Damage.</p> <p>In estimating the value of the lands of plaintiffs, situated as they are shown to be, the fact that they possess peculiar advantages as a site for a ferry-landing may be allowed in the estimation of the market value of the land. Plaintiffs have a right to insist on this fact as an element that goes to make up the value.</p> <p>14. Same — Additional Use.</p> <p>If the additional use sought to be fastened on the land of plaintiffs by the construction of a wagon and footway bridge by defendant necessarily injures its value as a ferry-landing, then there is, for this reason, an additional servitude cast on the land, for which plaintiffs are entitled to additional pay.</p> <p>15. Same — Exercise op Power.</p> <p>In this case the land condemned under the act of congress of June 1,1886, could he condemned but for one purpose, and that was for use as a right of way for a railway and a railway bridge. The condemnation of private property for public use must be to subserve the use authorized, and the power of condemnation can only be exercised when expressly granted, or when it exists by necessary implication, and it must be exercised in the manner granted.</p> <p>16. Cherokee Nation — Title to Land.</p> <p>The Cherokee nation holds the fee to all the lands to which it has title. Individual citizens of the nation have a right of perpetual occupancy in lands improved and occupied by them under the laws of the Cherokee Nation. By this right of occupancy the individual Indian citizen can hold and occupy the lands forever, and fully enj oy all profits arising from them, and their right of occupancy may he transferred by a grant to another citizen of the nation, or it may descend by inheritance. Practically they get all of .the productions of the land, and are entitled to its increased or peculiar value as though they held it in fee. b</p> <p>17. Same — Right to Compensation.</p> <p>The Cherokee citizen and occupant of land has such a durable and permanent interest in his land as to entitle him to pay for an additional servitude cast on the same.</p> <p>18. Eminent Domain — Additional Servitude — Compensation.</p> <p>The use of lands already condemned for use as a right of way for a railway and railway bridge, for approaches for a wagon and foot-passenger bridge, is not a use for railway purposes, and is not one authorized by such first condemnation; and, before the same can be used for approaches for a wagon and footway bridge, if such use in any way casts an additional burden on said land, it must be condemned again by right of eminent domain, and this can only be done when authorized by the legislative power. In this case no such authority exists, either expressly or by necessary implication.</p> <p> ■(Syllabus by the Court.) </p>

<p>At Law.</p> <p>The plaintiff, an Italian, 24 years of age, was, in 1888, in the employ of the defendant as a common laborer. On the evening of November 6th, of that year, be was run oyer by a locomotive of the defendant, receiving injuries which resulted in the amputation of his right foot. He sues to recover damages for this injury which, he alleges, was caused by the-defendant’s negligence. The action was .tried at the April circuit, and resulted in a verdict of $4,000 for the plaintiff. The defendant thereupon moved to set aside the verdict as contrary to law, against the weight of evidence and for.excessive damages. The plaintiff testified that on the day in question he was engaged with 56 other laborers in working on the west side of the Missouri river, near Bismarck, N. D. The lodging-place of these workmen was on the east side of the river, and it was the custom of the defendant at about half past 5 in the afternoon to carry them on cars across the bridge to their homes. On the day in question th.e foreman.who had charge of this party of laborers informed them that they could not be carried home in the usual manner, but would have to walk across the bridge; and that it would be safe to do so as no engine would cross until half past 7.. The entire party started to cross the bridge on foot. The plaintiff had received an injury to his side a short time previous, and was unable to keep up with the others. When near the. center he saw an engine coming towards him. He tried to step aside, b.ut caught his foot under the wheels and received the injury described. The Bismarck bridge is straight, it has a single track, and is 1,450 feet in length. On the day in question the track was slightly frozen. The plaintiff could have stepped off the track out of the way of the engine if he had seen it coming, but there was not room at the side of the track to walk. He could have crossed at the side only by crawling from one trestle to another. The foregoing is, in substance, the account of the accident given by the plaintiff. On the part of the defendant-several witnesses testified that the plaintiff was injured at a point several hundred feet from the east end of the bridge while attempting to jump on the front board of a moving engine. It is unnecessary to consider this testimony further than to say that it entirely exeulpated the defendant; if true, the defendant was proved to be free from negligence, and the plaintiff was shown to be guilty of gross contributory negligence. The jury, however, believed the statement of the plaintiff and rejected that of the defendant. At the close of the plaintiffs case and again after the evidence was all in the defendant moved to direct a verdict on the ground of the contributory negligence of the plaintiff. Upon this question the court charged the jury, after calling their attention to the evidence which tended to show that the plaintiff should have seen and avoided the engine, as follows:</p> <p>“Of course, on the other hand, you have the right to take into consideration the statement which the plaintiff says was made to him by the defendant’s boss, that it was safe for him to cross at that time, and that no engine would cross the bridge until about 7:30 o’clock.”</p> <p>The defendant excepted to that portion of the charge just quoted. This exception and the exception to the refusal of the court to direct a verdict on the ground of contributory negligence were the only ones taken by the defendant. The point that the defendant was free from fault, and that the negligence which caused the accident was that of the engineer, who was a fellow-servant with the plaintiff, and the point that this court has no jurisdiction of the action, were not raised at the trial.</p>

<p>1. Gambling Contract — Promissory Notes.</p> <p>Pen. Code Cal. § 830, declares “any banking game played with cards, dice, or device for money ” an offense punishable by fine, and Civil Code, § 1667, declares any contract contraryto the policy of express law, or “contrary to good morals, ” to be unlawful. Held, that notes given for a debt created by throwing dice are invalid between the original parties or purchasers with notice.</p> <p>2. Same — Innocent Holder — Burden oe Proof.</p> <p>In an action brought by the indorsee of such notes, the invalidity of their origin having been shown, thp burden is cast ugon the plaintiff of showing that he took them for value, and without notice of the illegality of the consideration, and, where the evidence on this subject is evasive, uncertain, improbable, and unsatisfactory, a judgment will be rendered for defendant.</p>

<p>1. Judgment — Review after Term — Jurisdiction.</p> <p>A federal court has jurisdiction to determine whether a judgment rendered by it at a previous term is void.</p> <p>2. Same — State Statute.</p> <p>Code Civil Proc. S. C. § 195, which permits a court at any time within a year to relieve a party from a judgment taken against him through mistake, has no application to a judgment of forfeiture on a recognizance in the federal court, where the defendant was represented by an attorney, and the only mistake alleged is that his attorney failed to make defense.</p> <p>3. Criminad Practice — Recognizance—Waiver.</p> <p>Where a person who has been arrested and given bail for his appearance voluntarily appears before the commissioner at the preliminary hearing, and enters into recognizance for his appearance at court, the validity of such recognizance is not affected by any irregularities in the proceedings leading to his arrest, since he waived such irregularities by appearing.</p> <p>4. Same — Poreeiture of Recognizance.</p> <p>Where the surety on a recognizance not only appears upon proceedings to forfeit the recognizance, but also obtains a continuance of the cause, so as to suspend the entry of confirmation, he waives notice of the rule to plead.</p>

In Equity. Suit for infringement of patents Nos. 386,674 and 386,675, for paper or bill file, issued July 24, 1888, to Arthur J. Wells, and by him assigned to complainant August 10, 1888.

In Admiralty. Libel by Williams & Co. to recover the principal sum of £250 and interest, advanced on the credit of the vessel when the latter was at Montevideo, and agreed to be paid to said Williams & Co. 10 days after her return to Montevideo, or in event of the abandonment of the voyage back to Montevideo before the vessel left the United States. This suit was begun by attaching the vessel in Philadelphia on the allegation that the voyage back was abandoned.

<p>1. Removal of Causes — Diverse Citizenship — Residence of Corporations — Amendment of Record.</p> <p>Where one oí the plaintiffs is simply an agent of the other, without any personal interest in the controversy, his presence has no effect on the defendant’s right of removal.</p> <p>2. Same — Sufficiency of Record.</p> <p>Under Act Cong. Aug. 13, 1888, providing that causes removable on the ground of diverse citizenship may be removed into the circuit court for the proper district by the defendant or defendants “ being non-residents of that state, ” it is not enough that the record shows that defendant is a corporation organized under, and a citizen of, another state, and located in such state, since it may also be a resident of the state in which the action is brought by reason of a second incorporation under its laws.</p> <p>8. Same.</p> <p>The fact that the corporation has a factory and place of business in the state where the action is brought does not give it a residence therein.</p> <p>4. Same — Amendment of Record.</p> <p>The amendment of the record to show jurisdiction in the circuit court must be made in the state court.</p> <p>5. Same — Bond.</p> <p>The omission from the removal bond of the seal to the surety’s signature is but a formal defect, which may be cured by amendment.</p>

<p>1. Assignment for Benefit oe Creditors — Reservations.</p> <p>Clauses in the assignments of insolvents, requiring releases from creditors accepting dividends, regarded with great disfavor by courts.</p> <p>8. Same — Action to Set Aside.</p> <p>Such an assignment must embrace all the estate of the insolvent, must give full information as to the character and probable value of the assets, and must allow i ample time to creditors to determine whether to accept and release or not. Where all the insolvent’s estate is conveyed, and the claim of plaintiff is acknowledged ' fully and exactly, and the plaintiff is left without redress in an action at law, in such case, a bill in equity may be brought to set aside an assignment as hindering, delaying, and defrauding creditors, before judgment is obtained at law, as required in Scott v. Neely, 11 Sup. Gt. Rep. 718.</p> <p> 0Syllabus try the Cowrt.') </p>

This is a bill in equity. Its substantial averments are as follows: The complainant is a corporation under the laws of Kansas and Missouri, and the Anglo-American Packing & Provision Company is a business corporation of the state oí Illinois, and the other respondents, Robert D., John, lieorge, Anderson, William, and Alexander Fowler, are also citizens of, and residents of, the state of Illinois.

At Law. On demurrer to complaint. Demurrer to a complaint in an action to recover possession of portions . of section 27, township 10 N., range 4 W., P. M. Montana.

<p>1. Trade-Marks — What will be Protected.</p> <p>An application for a trade-mark stated that it consisted “essentially of the illustration of a boy in a position indicating suffering from cramps. ” Immediately below the figure of the hoy were the words “Cramp cure, ” forming part of the expression, “Cramp cure for every ache or pain,’’but the applicant stated that this descriptive matter might be altered or omitted at pleasure, without affecting the character of the trade-mark. Held, that the trade-mark consisted in the design of the suffering boy, which the application stated to be the essential feature, and that the words “ Cramp cure ” formed no part thereof.</p> <p>⅛ Same — Descriptive Words — “Cramp Cure.”</p> <p>The words “Cramp cure” are descriptive of the purpose and character of the medicine, and cannot, therefore, be appropriated as a trade-mark by the manufacturers of a remedy for the disease.</p> <p>.8. Same — Statutory Regulations.</p> <p>The right to trade-marks, and the remedies for their protection, exist independently of statutory regulations; and therefore the fact that Act Cong. March 3, 18S1, § 3, fails to enumerate descriptive words in the list of limitations on the right to the registry of trade-marks, does not by implication validate a trade-mark consisting of such words.</p>

<p>Patents im Inventions — Anticipation—Grinding Mii.es.</p> <p>In letters patent No. 382,802, issued May ], 1888, to James S. Woodcock, claim 8 is for — “In a grinding mill, á stationary burr, a running burr within t£e latter, composed of a burr section or sections, and a dome-plate, insertible through said burr section or sections, and from which the latter are suspended with the means of attachment. ” Claim 4 is for — “In a grinding mill, the combination with the running burr, tho fixed or stationary burr, and the case, having an exterior bottom flange, provided with holes for its attachment, of the annular meal trough, having the perforated lugs, m, and the bolts, a, securing said meal trough, said stationary burr, and the case together, and a ring conveyer having radial blades, located within said annular meal trough, and having means thereon for connecting it with the running burr, said meal trough being provided with a discharge orifice. ” Held, that each feature of the combination is old. The combination itsolf anticipates by the patents, and heneo this patent is invalid.</p>

<p>Interstate Commerce — State Railway Commission.</p> <p>Orange growers in Florida shipped their fruit from one point in-that state to another point in the same state, consigned to their agent at the latter point, for reshipment, who immediately forwarded them to their destination in another state. Held, that the shipment from the growers to the forwarding agent was interstate commerce, not subj ect to the control of the Florida Railway Commission. Following The Daniel Ball, 10 Wall. 557. •</p>

<p>L National Jurisdiction — Mining Claims.</p> <p>A suit brought in support of an adverse claim, in pursuance of the requirements of section 2326, Rev. St. U. S., as amended in March 1881, (1 Sup. Rev. St. 609) is for that reason a suit arising under the laws of the United States, within the meaning of the statute giving jurisdiction on that ground, irrespective of the character of the question involved in the litigation.</p> <p>2. Same.</p> <p>Such an action has for one of its objects the determination as to whether either party has divested the United States of the possessory title to the premises in controversy. It is not only intended to determine the rights of the two parties as between themselves, but also as between each of the parties and the United States; thereby making the United States substantially, though not formally, a party to the suit, and entitled to have their rights determined in the national courts. On that ground the United States are entitled to have their rights determined in the national courts.</p> <p>8. Same.</p> <p>Such cases are not within the decision of Trafton v. Nougues, 4 Sawy. 178, and Water Co. v. Keyes, 96 U. S. 199.</p> <p>4. Admission of Idaho — Transfer oe Causes.</p> <p>Where an action was commenced in territorial courts before admission, it was not necessary tosíate jurisdictional facts sufficient to give jurisdiction to this court; and such facts may be stated in request for transfer or by affidavit. Such request, like the petition in a removal case, becomes, upon filing and transfer thereafter, a part of the record, for the purpose of determining the question of jurisdiction. It is sufficient when the jurisdictional facts appear in the request for transfer, even though not set up in the pleadings.</p> <p>5.</p> <p>suci1 request is filed in the state court, that court should papers to the circuit court, and, upon filing such request, the jurisdiction of the state court ceases.</p> <p>8.</p> <p>0Ilul courts cannot compel state courts to transmit original papers, but, when a state court refuses so to do, may proceed upon certified transcripts.</p> <p> (Syllabus by the Court.) </p>

<p>At Law.</p> <p>Motion to quash indictment, on the ground that the grand jury finding and returning the same was not a legal grand jury, for the reason that the venire issued by the court directed that the requisite number of jurors should be summoned from a named part of the district.</p>

<p>On Habeas Corpus.</p>

<p>Patents fob Inventions — Novelty.</p> <p>Though the use of circular rings for the packing of piston-rods, cut from sheets built up of alternate layers of India-rubber and cloth, with an oblique slit at one side for the purpose of springing the ring upon the piston-rod, was old, yet a patent covering the product obtained by boiling such rings in oil with plumbago held in suspension, so as to drive the lubricant thoroughly into .the fibers of the cloth and the interstices of the India-rubber, softening them both, and rendering them a sort of reservoir for the lubricant, is not invalid for want of novelty.</p>

<p>1. Admiralty — Taxation op Costs.</p> <p>A decree of a circuit court simply affirming a decree of the district court in admiralty “with costs” means that costs are to be paid by the losing party.</p> <p>2. Same — Proctor's Fees.</p> <p>Where, in the discussion before the district court, a person was recognized as proctor for the successful party, he must be allowed his costs, though there was no entry of appearance by him within the time required by rule.</p> <p>8. Same — Docket Fees.</p> <p>In admiralty there can be but one docket fee, though the case is appealed from the district to the circuit court.</p>

<p>Admiralty — Taxation or Costs.</p> <p>The district court ordered respondent to pay costs, and then dismissed the libel. Libelant appealed, and the decree was affirmed, with costs. Held, that libelant was to pay the costs of the circuit court and respondent those of the district court.</p>

<p>Illegal Dumping—Liability of Vessel—Act of June 29,188S.</p> <p>When an employe on board of a steam-ship threw overboard a single scntt] s of ashes in a place prohibited by the statute of June 29,1888, (25 St. at Large, i. 209,) entitled “An act to prevent obstructive and injurious deposits within the harbor of New York, by dumping or otherwise, and to punish and prevent such offenses, ” and there was no proof of orders by any one in authority, it was held that the steam-ship was not used or employed in a violation of the law, in the sense of the statute, and was not liable in rent to the penalties therein prescribed.</p>

<p>Illegal Dumping—Liability op Vessel—Act op June 29,1888.</p> <p>Under the statute of June 29, 1888, (25 St. at Large, p. 209,) entitled “An act to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York city, by dumping or otherwise, and to punish and prevent such offenses, ” a steam-ship from which ashes are dumped in an unlawful place, by firemen presumably acting under orders from some superior officer, is liable as having herself violated the law.</p>

<p>Seaman’s Wages—Fukchase oe Claim by Owner—Discharge oe Lien.</p> <p>A purchase of a seaman’s claim for wages against a vessel by the owner of the vessel is, in legal effect, a payment of the seaman’s claim, and discharges the vessel of the lien for wages.</p>

<p>Weight of Evidence—Dispute of Fact—Number of Witnesses.</p> <p>In a dispute of fact, when all the witnesses are equally positive and equally credible, and one story is as plausible as the other, the party presenting two witnesses must prevail over the party presenting but one.</p>

<p>In Admiralty. Suit to enforce a lien.</p>

<p>Carriers—Damage to Cargo—Oil and Plumbago—Leakage—Precaution.</p> <p>Casks of plumbago and eoeoanut oil were stowed together in the ship G., and on her arrival from Ceylon the plumbago was discharged damaged by the oil. It is customary to stow the two articles in the same ship, and leakage from casks of such oil on voyages from Ceylon to New York is to be expected. Some of the oil was stowed in the wings of the ship, between decks, and the plumbago stowed between the wings, where the oil was, was laid on the deck. No precaution was taken to prevent the leakage of the oil from reaching the plumbago. Held that, even if the leakage was occasioned by perils of the sea, yet, as the damage to the plumbago might have been avoided by the reasonable exercise of skill and'diligence, the omission to take any precaution against such damage constituted negligence for which the carrier was liable.</p>

<p>On Motion to Dismiss the Record.</p>

<p>1. Rbmovax. op Causes — Separable Gonteoveksy.</p> <p>Some of the stockholders and creditors of a New Jersey corporation, part of whom' were citizens of Virginia, brought an action in a Virginia state court against the corporation and its promoters, who owned the majority of its stock, alleging that the latter had defrauded the corporation in the payment of their subscriptions, and that.they had wasted the funds of the New Jersey corporation in acquiring the stock of various Virginia corporations, contrary to complainants’ rights. The Virginia corporations were also joined as defendants, and the theory of the bill was tbat complainants had the right to have the entire assets of the New Jersey corporation brought into court, and, to that end, that the various Virginia corporations, which had secured its funds, should also be wound np. Held, that incidental averments of indebtedness of the New Jersey corporation to the creditors who had joined as complainants in the bill did not constitute a separate controversy between them and the New Jersey corporation, so as to entitle the latter to remove the cause into a federal court on the ground that such complainants were citizens of a state different from that of the corporation.</p> <p>2. Same.</p> <p>Allegations in the bill that one of the Virginia corporations was organized by the promoters of the New Jersey corporation, with intent to defraud the stockholders and creditors of the latter, and that the New Jersey corporation had fraudulently conveyed land to the Virginia corporation without any valuable consideration, and at a great loss, do not constitute a separate controversy between complainants and the New Jersey corporation, so as to entitle the latter to remove the cause into a federal court, since the Virginia corporation and the promoters of the New Jersey corporation, some of whom are citizens of the same state with complainants, aro indispensable parties defendant.</p> <p>8. Same.</p> <p>The facts that some of the complaining stockholders hold full-paid stock, while others own assessable stock, that each of them may havo purchased at different times, and under different circumstances from the others, and that the claim of each complaining creditor may be distinguishable from that of the others, do not operate to split the cause of action on which complainants aro proceeding; nor is a separate controversy presented because complainants might have severally prosecuted the suit which they have properly brought jointly.</p> <p>i. Same — Local Pkejudice.</p> <p>While a single defendant, being a citizen of a state other than that in which the suit is brought, who is jointly sued with other defendants, citizens of the same state as complainants, may remove the suit to the federal court on the ground of local prejudice, yet such removal cannot be made when complainants are not all citizens of the state in which suit is brought, and all are concerned adversely to the non-resident defendant who seeks to remove the cause.</p>

<p>1. Railroad Companies — Amalgamation—Congressional Geaxts.</p> <p>The act of congress of March 3, 1871, authorized the Southern Pacific Railroad Company of California, subject to the laws of California, to construct a certain line of railroad, and granted It certain lands. The Southern Pacific Railroad Company, as it then existed, accepted said grant, and filed its plat of definite location in the proper office August 12, 1873. Said Southern Pacific Railroad Company, as authorized by the laws of California in force at the time of tho passage of tho act of congress, consolidated with other companies under the name of the Southern Pacific Railroad Company,, a part of its object, as stated in the articles of amalgamation, being to construct the railroad mentioned in said acr. Thereafter said consolidated company completely built said road, as required by said act, and the road so built was accepted by the president, and has performed, to the satisfaction of the government, all the-services required of it under said act. Held, that said consolidated company if not, technically, is, substantially, tho same company to which said act referred. Affirming Railroad Co. v. Poole, 12 Sawy. 544,32 Red. Rep. 451; ¡7. S. v. Railroad Co., and íf. S. v. Collon, ete., Co., 45 Fed. Rep. 596.</p> <p>3. Amalgamation — Recognized by Congress.</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 13, 1873, filed, together with the S. P. Branch R. R. Co., articles oí 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>8.Same.</p> <p>Commissioners having from time to time been 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 8,1871, 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>4. Railkoad Companies — Successoks and Assigns.</p> <p>Act Cong. July 37, 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>5. Same. •</p> <p>Inchoate grants were not contemplated by congress when it provided for deductions, but lands that had been effectively granted, and to which the title has passed, or shall effectively pass, and finally become effectively vested in the grantees upon the performance of the prescribed conditions.</p> <p>6. Same — Proviso in Grants.</p> <p>The section of Act Cong. March 3, 1871, granting lands to the Southern Pacific Railroad Com pany, provided that said section should in no way affect or impair the rights, present or prospective, of the Atlantic & Pacific Company. Held, that this language did not constitute an exception from the grant, nor a reservation in favor of the United States, but that it made the grant to the Southern Pacific Railroad Company subject and subordinate to any rights the Atlantic & Pacific Company, a ■ prior grantee, may then have secured, or might thereafter acquire under the law.</p> <p>7. Same.</p> <p>The present and prospective rights of the Atlantic &; Pacific Company were to secure the odd sections of land provided for along the line of the road they should build by actually building the road and earning the lands by performing the acts required. Their rights were to earn the lands, and not to obtain them without earning them.</p> <p>8. Same — Forfeiture.</p> <p>As the Atlantic & Pacific Company never did comply with the condition of the grant to it, and as all of its rights thereunder became forfeited in 1886, by act of congress, because of such non-compliance, its rights have never ripened into an effective grant, and now they never can so ripen. The only condition imposed upon the grant to the Southern Pacific Railroad Company has thus become inoperative.</p> <p>9. Same — Failure of Prior Grant.</p> <p>The Southern Pacific Railroad Company, having performed all the conditions required of it by the act of 1871, thereby acquired a right to the odd sections for the prescribed distance on each side of the road, subject only to be defeated by the Atlantic & Pacific Company having an older grant, and filing its map of definite location, and performing the other conditions necessary to earn the lands; but the Atlantic & Pacific Company never having performed said conditions, and its grant having been declared forfeited by congress, the lands never were granted to it, within the meaning of the act of congress, and the grant to the Southern Pacific Railroad Company therefore became effective and perfect without in any way affecting or impairing any rights of the Atlantic & Pacific Company.</p> <p>10. Same — Act of 1886 — Effect of on Grant.</p> <p>No claim in the act of July 37,1866, granting lands to the Atlantic & Pacific Company under the facts before stated defeats the grant to the Southern Pacific Rail* road Company to the odd sections lying within the primary limits of the grant.</p> <p> (Syllabus by the Court.) </p>

<p>Railroad Mortgage — Foreclosure—Allowance to Counsel.</p> <p>Where in the foreclosure of a railroad mortgage the complainant is the holder of a majority of the bonds secured, and the trustee, hy agreement with the complainant, has declined to act in the foreclosure proceedings, and is made a co-defendant, and full allowance has been made to the counsel of complainant and to the receiver for his services, all for duties which by the mortgage were assigned to the trustee, it was not error to refuse an allowance also to the trustee’s counsel.</p>

<p>1. Husband and Wive—Marriage—Evidence—Burden of Proof.</p> <p>One who asserts a marriage as the basis of a claim at law or in equity must satisfy the court, upon the whole case, by a fair preponderance of proof, not necessarily when and where such contract was made, but that at some time and place it was made.</p> <p>3. Same—Marriage—How Proved—Inferences.</p> <p>Marriage may be proved by circumstantial evidence, by proof of the acts and declarations of the parties, of their cohabitation as husband and wife, holding themselves out to the world as such. Such course of life or declarations do not make a marriage, but are legitimate ground for inferring that there has been at some time a valid marriage contract.</p> <p>3. Same—Evidence—Repute.</p> <p>On a disputed question as to the existence of a marriage, evidence of repute in the families of the contracting parties is admission.</p> <p>4. Same.</p> <p>On the evidence in this case, held that the marriage asserted by complainant was not proved.</p>

<p>1. Quieting Title — Pleading—Community Property.</p> <p>Plaintiff’s till alleged that a patent of certain land was in 1S72 issued to the heirs at law of one S., the heirs being his mother and several brothers and sisters, and the children of deceased brothers and sisters; that plaintiff was married in 1870 to R., a son of a deceased sister; that R. died intestate, without issue, in 1871; that in 1870, after said marriage, the mother of S. conveyed her interest in the land to R.; that by virtue of the deed, and the statutes of Washington relating to the rights of married people, the share of R. and of the mother of S., deeded to him, became the common property of ft. and plaintiff, and on R.’s death plaintiff became the owner in fee-simple of an undivided one-half; that defendants claimed the whole of tbo land under a conveyance made pursuant to a sale under a decree of the court, to . which plaintiff was not a party. The bill sought to establish plaintiff’s title to the shares claimed by her. Held, that the bill was demurrable in not stating when and where S. died, or any facts by which the court could ascertain, under what act of congress the patent was issued to his heirs, and what laws as' to the property fights of married people were in force, or the residence of R. and his wife, (plain. ■ tiff,) or the date of the suit under which the sale and conveyance was made to defendants, or of any reasons for plaintiffs delay in suing.</p> <p>8. Husband and Wife — Community Property.</p> <p>Under Laws Wash. 1869, p. 319, declaring that all property acquired by a husband after marriage, by gift, devise, or descent, shall he his separate property, and that all property acquired after marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property, makes property acquired by a husband by descent his separate property, .and not the community property of himself and wife.</p> <p>3. Same — Non-Residents.</p> <p>Laws Wash. 1869, p. 319, § 11, providing that in every marriage thereafter contracted in the territory the rights of husband and wife should be governed by this act, unless there was a marriage contract containing stipulations contrary thereto, and section 12, providing that the rights of husband and wife, married out of the territory prior to the passage of tho act, but who should reside and acquire property therein, should also be determined by the provisions of the act, held, that the act did not confer any rights on a wife whore she and her husband resided without the territory.</p>

<p>1. Wateb-B.ights — Diversion oe Water.</p> <p>A deed by the owner's oí a stream to a corporation organized for the purpose of diverting water from the stream for the purposes of irrigation, the furnishing water for mining and manufacturing purposes, and for supplying water to cities, conveying the right to the grantee, its successors and assigns, “to divert and appropriate all the waters flowing in ” said stream, is a grant of the right to divert the water thereafter flowing in the stream, as against a subsequent purchaser from the grantor of land bordering on the stream.</p> <p>3. Conveyance by db Facto Corporation.</p> <p>A conveyance to or by a de Jacto corporation cannot be avoided on the ground of any defect in its organization.</p>

In Equity. This is a bill for specific performance. The bill in substance recites that on the 1st day of January, 1882, one Malcolm McKinnon, (who was the uncle of complainant, John A. McKinnon, and then engaged in the practice of medicine at Maysville, Mo.,) formed a copartnership with the complainant at said place in the practice of medicine; that at said time Malcolm owned in fee a certain parcel of land as residence property, of the value of $1,000; that it was agreed at…

<p>1. Equity— Rescission or Conteact.</p> <p>A man 28 years old bought, after examination, a plantation which was only worth two-thirds of the price he paid for it. There was no evidence of fraud or undue influence. The vendor offered to release him from the bargain before it was consummated, but. he refused to be released. Held, that the sale could not be set aside in equity.</p> <p>⅞. Same — Insanity—Evidence.</p> <p>Under-Civil Code La. art. 1788, which provides that, where there has been no interdiction,- a contract will not be void on the ground of insanity unless the party is notoriously insane, the evidence of five witnesses that a man is of feeble intellect, when contradicted by that of seven witnesses, there being no evidence that the pur- ■ chaser-hnew of the vendor’s incapacity, is not sufficient-evidence of notorious insanity to avoid a contract.</p>

<p>Negotiable Bonds — Liability op Seller — Warranty.</p> <p>The bona fide owner of negotiable bonds which are fraudulent reissues of genuine bonds is not liable to one who purchases them from him for the amount paid therefor, in the absence of any warranty. Following Otis v. Cullum, 92 U. S. 447.</p>

<p>1. Judge de Facto — Title to Office.</p> <p>Title to an office cannot be determined in a collateral proceeding, but sufficient inquiry may be made to determine whether a claimant is a mere intruder or not.</p> <p>2. Same.</p> <p>Defa,eto officers are those who act under some color of right to the office,- who perform its duties, who are generally recognized as the officers, whose acts as such are acquiesced in, and their acts are valid.</p> <p> (Syllabus by the Court.) </p>

<p>1. Representation as to Another’s Credit.</p> <p>Defendants, as directors, during a run on their bank, posted conspicuously in the bank a notice, signed by them, and addressed to the general public, representing the bank to be solvent. Plaintiff saw the notice, and, after a consultation with the directors, loaned the bank money, which was lost. Held, that the notice, not being addressed to plaintiff, could not entitle it to recover from the directors, under R. L. Vt. § 983, which provides that no action shall be brought to charge any person upon a representation concerning the credit of another, unless such representation is in writing, and signed by the party to be charged; and the fact that the notice was signed by defendants as directors would prevent a recovery from them individually, even if the notice were a sufficient representation in writing.</p> <p>2. Same — Parol Evidence.</p> <p>Such representation in writing cannot be aided by evidence of additional verbal representations.</p>

<p>Rights or Accommodation Indorsee.</p> <p>Defendant bought out a company for which plaintiff was an accommodation in-dorsor, agreeing to pay $26,000 of its debts, and, on notice that the notes on which plaintiff was indorser was part of the $26,000, requested plaintiff to continue his in-dorsement, and agreed to pay the notes. Plaintiff did so, and was compelled to pay the debt. Held, that defendant was liable to plaintiff, though the debt was not in fact a part of the $26,000 assumed by it, and though it had paid other debts to the amount of $26,000.</p>

At Law. In an action to recover damages for being forcibly ejected from a passenger steam-boat, upon the trial before the court and a jury, after the introduction of evidence on the part of the plaintiff, the defendant moved the court for a judgment of nonsuit, on the ground that the plaintiff had failed to prove his case.

<p>1. Constitutional Law — Taking Private Property eor Public Use.</p> <p>For the purpose of improving a navigable river the government erected a dam, which raised the level of the river, and thus prevented the owner of adjoining rice fields from draining his canals into the river between high and low water marks, as he had previously done, but did not actually invade his premises. Held, that the injury to the rice fields did not constitute a taking of private property, within the meaning of the constitutional prohibition against taking private property for public use without just compensation.</p> <p>2 Navigable Waters — Riparian Rights. t</p> <p>The Savannah being a navigable stream, the rights of the plaintiffs in the ebb and flow of the tide are subordinate to the control of the government, for purposes, of navigation; and it having determined that the current shall be confined for the purpose of scouring and deepening the channel, an injury resulting from an elevation of the flow of the tide, which prevents the discharge of the plaintiffs’ canals between high and low water mark, is damnum absque injuria.</p> <p>8. Jurisdiction — Claims against the Government.</p> <p>Act Cong March 3, 1887, (24 St. at Large, p. 505,) which gives the federal courts jurisdiction of actions against the government for claims upon contracts or for damages in cases not sounding in tort, does not give them jurisdiction of an action against the government for an alleged wrongful diversion of a water-course, since that is an action sounding in tort.</p>

<p>At Law. Indictment for adultery.</p>

<p>At Law. Unlawful cohabitation.</p>

<p>Post-Office — Mailing Obscene Matter.</p> <p>A letter in which the person to whom it is addressed is called “a son of a bitch, ” inclosed in a sealed envelope, does not render the sender liable, under Rev. St. Ü. S. § 3893, as amended by Act Cong. Sept. 26,1888, prohibiting the mailing of matter “upon the envelope or outside cover of which, or any postal-card upon which, are any delineation, epithets, terms, or language” of an indecent, libelous, or defamatory character, etc.</p>

<p>Criminal Law — Refusal op Witness to Testify — Misconduct op Counsel.</p> <p>Where a witness called by the government refuses to answer certain questions on the ground that the answers may tend to criminate him, it is reversible error for the court to charge the jury that such refusal is a circumstance from which it might be argued that the object of the witness was to shield the defendant rather than himself, and to allow the district attorney to argue that such refusal was a circumstance to be considered by the jury in making up their verdict.</p>

At Law. Defendant was indicted for knowingly aiding and abetting the landing in the United States of Chinese persons, not lawfully entitled to enter the United States.

<p>1. Suit por Accounting — Jurisdictional Amount.</p> <p>In a suit against manufacturers to recover royalties for use of a patent, and for an accounting, an objection on demurrer that the amount involved is insufficient to give the circuit court jurisdiction is without merit if the bill on its face shows that the amount is sufficient. Until a decree for an accounting is made, proof of the amount recoverable would be premature.</p> <p>2. Patents nob Invention — License—Fraudulent Representations.</p> <p>The owner of a patent on hat-sweats, having sued for infringement, to compromise, granted defendants a license to use the patent in their manufactures, m consideration of a certain royalty, and agreed to give them a rebate of 50 per cent., and not to grant a license to any other manufacturer except for the same royalty, without rebate. The terms of the licenses were kept secret from other manufacturers, and the owner of the patent issued to them a circular stating that theliconses had been granted to the other manufacturers for tho specified royalty, but saying nothing as to the rebate, and through his agents the other manufacturers were induced to accept licenses under the tei’ms specified in the circular. .Held, that the owner’s fraudulent representations preclude his recovery of the royalties.</p>

<p>1. Patents fob Design — Improvements.</p> <p>-A patent for an improvement in a design is valid where the.description in the specification, referring to accompanying drawings, and explaining the same, shows that the new design is original and distinctive-of'itself, and an improvement as .compared-with other, designs, and not merely an improvement on some other particular design.</p> <p>3. Same — Patentability.</p> <p>A design for a mantel, consisting of a combination of scrolls and ornamentations, producing an effect upon the eye substantially different from any previous design, is patentable, though many of the elements going to make up the design have been in use before.</p> <p>8. Same — Failure to Mark Date of Patent — Pleading.</p> <p>In a suit for infringement of a patent, the defense that complainant’s articles were not marked with the date of his patent, as required by Rev. St. U. S. § 4900, cannot be raised for the first time at the hearing, but must be raised by the answer.</p> <p>4.: Same — Penalty for Use of Patent — Evidence.</p> <p>Defendant purchased mantels, of a design patented by complainant, from a manufacturer who had no license to use the design, and resold them. A circular had been addressed to defendant by complainant giving notice that the design was protected by patent, and complainant’s agent testified that, in a conversation with defendant in regard to his use of the design, the latter stated that complainant should hold themanufacturer-to account, and not him, (defendant..). Meld, that the evidence showed that defendant knew that the manufacturer had no license to use the patent, and was liable for the penalty of S250 prescribed by Act Cong. Peb. 4, 1887, making it unlawful for any person, during the term of letters patent for a design, to sell any article of manufacture containing the design, knowing that the design has been applied without consent of the owner of the patent.</p>

<p>Patents job Inventions — Preliminary Injunction — Prior Adjudication.</p> <p>Where a prior adjudication sustaining a patent is decided on the ground that the defendant’s own testimony that “he did not think there was any invention in the patent” is not sufficient to overcome the prima facie effect of the patent, such decision is not sufficient to justify the issuance of a preliminary injunction, restraining an alleged infringement of the patent, where the existence of an anticipating device is shown on the application for injunction by evidence which is undisputed, except by the opinion of an expert.</p>

<p>1. Patents for Intentions — Infringement—Corn-Planters.</p> <p>Letters patent No. 279,823, June 19, 1883, to Levi Schofield, for improvement in corn-planters, consisting in the combination with a tooth seed-plate of vibrating pawl-carriers, pivoted on diagonally opposite corners of a stationary casting, and carrying pawls for acting alternately upon the seed-plate to rotate it, are not infringed by a corn-planter in which the pawls are carried on a U-shaped slide operating as a rectilinearly moving pawl-carrier, the slide being guided by links which neither support nor carry the pawls.</p> <p>2. Same.</p> <p>Nor is the claim in said patent of the combination with a toothed seed-plate of pawl-carriers pivoted on diagonally opposite corners of a stationary casting, the gravitating pawls mounted on the pawl-carriers, and flanges on the stationary casting for guiding the pawls laterally, and insuring their positive and certain engagement with the teeth of the seed-plate, infringed by a corn-planter, which, instead of pivoted pawl-carriers, and gravitating pawls mounted thereon, has a sliding frame and gravitating pawls, such as were known and in common use prior to the date of the patent.</p>

<p>1. Patents foe Inventions — Novelty—Repeigebatoes.</p> <p>Held, that claim 4 of patent No. 343,369, June 8, 18S6, to Charles Haffcke, for the use of an exposed body of salt in a refrigerator, for the purpose of purifying the air of the refrigerator, was void for want of novelty.</p> <p>3. Same.</p> <p>Held, that claim 5 of the same patent, for a pei’forate hopper to contain a body of salt, in combination with a frigerating chamber, was invalid for want of patentable novelty.</p> <p> (Syllabus by the Court.) </p>

<p>1. Patents for Inventions — Infringement—Coralline.</p> <p>Claim 1 of patent No. 341,355, May 4, 1886, to Solter, Robbins & Sheppard, for process of manufacturing coralline from corn, held to be valid, and to have been infringed.</p> <p>2. Same — Extent of Claim.</p> <p>Claim 2 of the same patent for the product held not to be sustainable.</p> <p> (Syllabus by the Court.) </p>

<p>1. Fatents nob Intentions — Designs—Abandonment.</p> <p>Under Rev. St. U. S. § 4886, providing that the inventor of an art not in public "use or on sale for more than two years before his application, unless it is proved to have been abandoned, may obtain a patent therefor; and section 4920, making a defense to a suit for infringement of a patent, the fact that it has been in public use or on sale for more than two years before application for the patent, or that it has been abandoned to the public; and section 4933, providing that all the regulations and provisions which apply to obtaining or protecting patents for inventions or discoveries shall apply to patents for design, — a design is patentable unless it has been in use or on sale for more than two years, or has been abandoned.</p> <p>2. Same — Sale on Design.</p> <p>The sale by the inventor of a design of an article bearing his design, before his application for letters patent, to one whom he knows to be a manufacturer of such articles, and to intend to imitate the design, and whose purpose in purchasing he knows to be to obtain a pattern from which to manufacture, is not sufficient to "show an abandonment of the invention to the public; but such sale entitles the purchaser to manufacture and sell articles bearing the design, and the purchasers from him to resell the same.</p>

<p>! Patents por Inventions — Infringement—Cattle-Cars—Water-Troughs.</p> <p>Letters patent No. 161,807, April 6, 1875, to John R. McPherson, (reissue No. 7,038, April 4,1876,) for an improvement in stock-cars, consisting. of the combination with a cattle-car of longitudinal hinged troughs, located within the cattle space of the car, to he emptied outward, in the act of elevating them, by means of watersheds, so as to carry the water free from the floor of the car, and the combination with the hinged troughs of apparatus for depressing and elevating them by a positive force against the pressure of the cattle, are void for want of novelty, exceptas to the use of the water-sheds, and are not infringed by the use of troughs not located within the cattle space of the car, and which spill their contents clear of the floor of the car without the aid of water-sheds.</p> <p>2. Same.</p> <p>Letters patent No. 16S,061, September 21, 1875, to Steventon and McGrath, consisting, in a stock-car, of a feed and water trough composed of separate sections, each section fitting between two wall-posts, and supported upon a continuous shaft, whereby all the troughs may be simultaneously turned into position for feeding or watering, or turned up out of the way, are void for want of novelty, except as to the support of the troughs on a continuous shaft capable of turning all the troughs .simultaneously.</p> <p>8. Same.</p> <p>Letters patent No. 168,063, September 21, 1875, to John R. McPherson, consisting of a series of troughs between the walls of a cattle-car, mounted upon a rock shaft, which is also a pipe for conducting water into all the troughs simultaneously, and by which by a positive force all the troughs can be simultaneously turned into position, are not infringed by the use of similar troughs, which are supplied with water through a fixed pipe, with branches running separately to each trough.</p>

<p>In Equity. For infringement of patents relating to velocipedes or bicycles.</p>

<p>Personal Lkjtjry—Pali, into Hold of Vessel—Use of Temporary Ladder.</p> <p>Where libelant, a stevedore, did not make use of the fixed iron ladder belonging to a vessel in descending into her hold, but instead used a temporary wooden ladder, which broke under him, allowing him to fall into the hold, and it did not appear who placed awooden ladder in the hatch, the ship was held not liable for libel-ant’s injury.</p>

<p>Maritime Lien—Enforcement or—Laches—1Transfer of Ownership.</p> <p>A material-man held to be entitled to enforce his lien against a vessel, notwithstanding a subsequent transfer of the ownership of the boat, which the evidence did not show to be bond, fide, and notwithstanding a delay of between two and three years in enforcing the lien.</p>

<p>1. MakitimeContkacts.</p> <p>Contracts for work to be performed and materials to be furnished in completing and equipping a new vessel, left uncompleted by her builders, where such contracts are entered into and have their inception after the vessel has been launched and named, and become capable of being identified as a vessel, are maritime contracts.</p> <p>2. Same — Lien—Admibai/ty Jukisdiction.</p> <p>Where, by a local statute, a lion is given for work done and materials furnished in the construction of vessels, a suit in rem against the vessel upon such a contract, as above described, and to enforce such a lien, can be maintained, and is within the admiralty jurisdiction of the United States courts.</p> <p> (Syllabus by the Court.) </p>

In Admiralty. In the latter part of April, 1890, the master of the schooner Reuben Doud chartered her to carry for libelants a cargo of ice from Brockville, Ont., to Detroit, for $350, allowing three days to load at Brockville, and three days to unload at Detroit. She commenced loading Thursday, May 1st; and continued through May 2d and 3d; rested on Sunday, May 4th; resumed Monday, May 5th; finished Tuesday, May 6th.

<p>1. Shipping — Care of Seamen — Limb Juice.</p> <p>It is no excuse for not serving out lime juice to the crew daily, as required by Rev. St. U. S. § 4569, that the seamen preferred to receive coflee instead of lime juice.</p> <p>9. Same — Liability of Ship.</p> <p>When no lime juice is served, and the erew are attacked with scurvy, the ship is liable for the damage the seamen sustain on account of the disease, in the absence of any proof that they had contracted scurvy before the voyage began.</p>

<p>Collision — Evidence.</p> <p>A barge built oí four-inch planks, with the usual guard along the gunwale, collided with a dredger built of timbers 12 inches square, firmly fastened together with log-screws, and further strengthened by iron bands. The dredger afterwards sunk. Held, that the fact that the cargo sustained no injury from the collision showed that the sinking of the dredger could not have been caused thereby.</p>

<p>Salvage — Eire on Cotton Vessel — Presence of Tugs Belonging to Owner of Burning Vessel.</p> <p>A lighter loaded with cotton and flour caught fire about half past 1 o’clock in the morning, while lying at a pier. The tug A. immediately made fast to her, and towed her into tho stream, at the same time pumping water on the Are. Shortly after being towed into the stream, the barge was surrounded by tugs belonging to the owner of the barge, and as able as the A. to do all that might thereafter be required. The tug T., belonging to other owners, also arrived at 2 o’clock, and the tugH. came at 7:30 in the morning, and was told that her services were not required, notwithstanding which sho put on a stream of water. The barge was finally sunk, to extinguish the fire. The value of the property saved was $21,-587.50. The value of the A. was $15,000. The time of her service was rather more than 24 hours. The risk to her was small. Held, that the A. should recover $2,000 as salvage, the T. $500, and the H. nothing at all.</p>

<p>In Admiralty. Suit to enforce a lien.</p>

<p>Towage — Duty or Tug to Leave Tow in Safe Bekth.</p> <p>A tug left a sound canal-boat at a pier to which the master of the canal-boat objected as unsafe. At low water the canal-boat broke in two. The water was 30 feet deep at the end of tho pier. The evidence as to the depth of water at the bows of the canal-boat was conflicting. Held, that the evidence of the soundness of the boat, and the fact that she actually broke in two, together with the positive evidence of libelant that the water was shallow, placed the weight of evidence as to the unsafe nature of the place with libelant, who was therefore held entitled to recover his damages.</p>

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

<p>Collision — Damages—Wages of Crew of Injured Vessel.</p> <p>A tug was injured in a collision with a steamer, owing to the steamer’s fault. Held, that the wages and provisions of the crew of the tug during the expected time she was undergoing repairs, a period of 21 days, should not be allowed as damages against the steamer. •</p>

<p>1. Federal Courts — Jurisdiction—Parties.</p> <p>In a suit by ODe claiming ownership to land by conveyance from one who has made an entry thereon under the land laws of the United States, but who has not received a patent therefor, against one claiming the ownership by virtue of a subsequent entry, a petition of intervention filed by the United States alleging that plaintiff’s entry was fraudulent does not make the United States a party, to give the federal courts jurisdiction, since courts have no jurisdiction to pass upon title to land to which The United States has not parted with its legal title, where there is a controversy between a person claiming title under the land laws of the United States as against the government itself.</p> <p>8. Same.</p> <p>Since, under the law of Washington Territory, the territory was divided into four districts, and the legislature was given power to fix the time and places of holding courts within those districts, with the limitation that courts for the transaction of business in which the United States was interested or might be made a party could be hel d at no more than three places in each district, and since the legislature provided for courts in the second district for such business at three places other than Montesano, and provided that the court at Montesano should not have jurisdiction of suits in which the United States was interested or a party, such court could not allow to be made or make the United States a party to a suit.</p>

<p>1. Removal op Causes — Motion to Remakb — Pbactice.</p> <p>Upon motion to remand the court may hear affidavits controverting the allegar tions of the petition lor removal. Following Amy v. Manwiruj, 38 Fed. Rep. 8i%</p> <p>2. Same — Local Pkejudice.</p> <p>Where it appears that the defendant is a foreign corporation; that the plaintiff and his father live in the county in which the suit was brought; that the father is a very influential man in the county; and that thero is in the county a great prejudice against the defendant, and a general desire that the plaintiff may win his case, — the action is removable on the ground of local prejudice.</p> <p>3. Same — Evidence.</p> <p>The fact that it is not shown that such prejudice exists in every county to which the case is removable by change of venue is no reason for remanding the case, where it appears that, under the state law, the granting a change of venue in such caséis discretionary, and that the judge of the state court has stated that no grounds for removing the case exist.</p>

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

<p>1. Federal Courts — Equity Jurisdiction — Enforcement of Mechanics’ Liens.</p> <p>The fact that the right to enforce a mechanic’s lien is given by a state statute, and that it confers an adequate and complete remedy at law in the state courts, does not take away the equitable jurisdiction of a federal circuit court, where the parties are residents of different states, and the amount in controversy exceeds 82,000.</p> <p>2, Same.</p> <p>Where the remedy given by a state statute for the enforcement of mechanic’s liens is essentially equitable in its nature, the fact that jurisdiction over such cases has been given to courts of law within the state does not deprive the equity side of a federal circuit court of jurisdiction over an action to enforce such a lien.</p>

<p>1. Jurisdiction — Minino Cases — Construction of United States Laws. „</p> <p>The question of the discovery of a mining claim within the limits of another valid mining claim involves the construction of a congressional act, but, having already been construed by the supreme court of the United States, cannot he reconsidered by the inferior national courts.</p> <p>2. Same — Abandonment of Claim.</p> <p>Abandonment of a mining claim is not dependent upon any law of congress. In determining any question of abandonment, the construction of no act of congress is involved, and-its consideration does not give the United States courts jurisdiction.</p> <p> ,(Syllabus by the Court.) </p>

<p>1. Speoiito Performance — Vendor and Vendee — Trust.</p> <p>It is no objection to a specific enforcement of a contract to convey land that the legal title is held by one not a party to the contract, where such person is a party to the suit, and it appears that he holds the title in trust for the vendors.</p> <p>2. Same — Statute op Frauds.</p> <p>Where one who has agreed to sell certain land receives the full consideration therefor, and then fraudulently gives a deed conveying only part of the land, a specific enforcement of the contract may he had in equity, even though the contract was oral.</p> <p>8. Same — Laches.</p> <p>Where the relations between vendor and vendee are so intimate and friendly that the vendee has every confidence in the vendor, the vendee’s failure to examine the deed before accepting it does not prevent him from seeking equitable relief, where the deed does not conform to the contract of sale.</p>

<p>1. Judgment — Satisfaction—Joint Pasties.</p> <p>Separate judgments were rendered against two joint tort-feasors, and suit begun against the third. Two of the three paid the plaintiff 850,000, whereupon the judgment against one of them was vacated, and the suits against both of them dismissed. They signed a statement to the effect that the payment was made to reimburse the plaintiff for his costs, expenses, and attorney fees, and not in satisfaction of the cause of action sued on. Held that, notwithstanding this statement, the third tort-feasor was entitled to have such payment credited on the judgment against him.</p> <p>2. Same — Bevival—Payment.</p> <p>In an action to revive a judgment, money collected by a receiver appointed in a creditor’s bill brought on the judgment should be credited on the judgment.</p> <p>3. Equity Practice — Ne Exeat.</p> <p>Under Itev. St. U. S. § 717, which declares that no writ of ne exeat shall be granted unless satisfactory proof is made that the defendant designs quickly to depart from the United States, 9uch writ should not be granted in a suit to revive a judgment, whore no writ was granted in the action in which the judgment was rendered, but one was granted in a creditor’s bill brought on such judgment, under which the defendant was held under bond for more than seven years, especially where the allegation that defendant intends to depart is denied by answer, and is not supported by proof.</p>

<p>Life Insurance — Liability—Death from Inhaling Gas.</p> <p>Under an insurance policy which exempts the company from liability in case of death caused by inhaling gas, recovery cannot be had in case of death caused by the inhalation of illuminating gas, where it is uncertain whether the death was result of an accident or of suicide.</p>

At Law. Action by the plaintiffs, importers, to recover duties alleged to have been illegally exacted by the defendant, collector of the, port of New York. The merchandise involved .in the present suit was imported by the plaintiffs from Sandviken, Sweden, and entered at the port of New York, February 10, 1888.

<p>In Bankruptcy. Exceptions to register’s report.</p>

<p>1. Patents eoe Inventions — Action eoe Ini’kinoement — Cboss-Biia.</p> <p>In a suit for relief on account of interference and infringement, a cross-bill seeking relief for an alleged infringement of defendant’s patent by tbe complainant cannot be filed, not being germane to the original suit.</p> <p>2. Equity Practice — Cross-Bill.</p> <p>The fact that a complainant is beyond tbe jurisdiction of tbe court, so that the defendant cannot sue him in that forum in an original action, does not enlarge defendant’s right to file a cross-bill in the suit brought by complainant.</p>

Bills in equity by the Enterprise Manufacturing Company v. Deisler, manufacturer, and John Wanamaker, seller, of a meat-cutting device, to enjoin the infringement of patent No. 271,398.

<p>Admiralty Practice — Release op Attached Property.</p> <p>Under the fourth admiralty rule, which provides, that an attachment may be dissolved upon defendant giving bond to abide by all orders of the court, and pay the amount awarded by final decree, attached property cannot be released on bond conditioned for payment of the value of the property released, where the value of such property is less than the debt sued for.</p>

<p>In Admiralty. Damage to cargo by rats.</p>

<p>1. Collision — Tug and Tow — Joint Responsibility.</p> <p>It having been found (44 Fed. Rep. 392) that there was fault in the navigation of the ship and tow (1) in not straightening down river, as required bylaw, with reasonable promptness; (3) because shortly before collision, when the N.’s course was really clear, she ported, in order to follow the tug, and thereby unnecessarily ran into the E.; and it appearing that the N. had a master and crew on board in the performance of their duties, her quartermaster at the wheel, receiving orders from her master, and that the latter alone gave the final order which precipitated collision, the pilot or master of the assisting tug along-side being also on the bridge, and concurring in the navigation, — held, that the officers of both the tug and tow were joint participators bothsin the navigation, of the N. and in the above specific faults; that both túg and tow were therefore answerable to the E.; and that the N. could ' recover but half her damages. ■ 1</p> <p>8. Same. _</p> <p>■ What constitutes joint participation in the navigation of tug and tow considered, in reference to the language of Betts, J., and of Mr. Justice Clipeobd, in Sturgis v. Boyer, 24 How. 110; (opinion of Betts, J., in note.) "</p>

<p>Collision — Vessel at Anchor — 1Tug. '</p> <p>A dredge was anchored in the middle of the channel of the Delaware river, with proper lights burning. A ship towed by a tug came up the river. The tug, at a distance of a mile and a half of the dredge, shaped its course so as to pass to westward of the dredge, and steadily maintained that course. The ship in charge of its own master and crew was so carelessly steered that it did not follow the course of the tug, but collided with the dredge. Held,, that the ship, and not the tug, was responsible for the collision.</p>

<p>Admiralty—Makihg Past to 'Wharf—Insufficient Fastening—Breaking Adrift.</p> <p>Libelant’s boat was lying oil tbe end of pier 2, near Wallabout canal, in the East river. Twenty-five feet away, and at pier 1, lay a tier of 6 boats, among them the Nora Costello." One hundred feet above these lay another tier of 8 or 10 boats. On the turn of the tide, the wind blowing fresh at the time, the whole last-named tier broke loose, and was carried down upon the second tier of boats, which in turn gave way, and swung around upon the boats off pier 2, the Costello striking libel-ant’s boat, and doing damage, to recover for which this libel was filed. The libel charged that the Costello was not properly made fast to the pier. The evidence showed that she was fastened in the customary manner. Held, that vessels, in making fast to piers, are bound to provide only against ordinary contingencies, such as they can anticipate; that they are not bound to make fast by lines so strong or numerous as to resist the impact of such a fleet of vessels as got adrift in this case; and that, as there was no negligence in the Costello as to her mode of fastening, the libel against her should be dismissed.</p>

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

<p>Collision — East River — Towage Lights — Narrow Passage — Disregarding Signals —False Lights — Proximate Cause.</p> <p>The ferry-boat C. P., in going down the East river at night, undertook to go between a schooner and a tug coming up about 150 feet apart; the latter having 3 coal-boats lashed to her starboard side. The tow along-side the tug was not seen until very near, and, in passing, the paddle-wheel of the ferry-boat ran over and sunk the outside boat of the tow. The schooner and the tug were considerably on the New York side of the river, the latter about 350 feet from the docks, and two-thirds of the river to the eastward were free and unobstructed. The tug exhibited the usual colored lights, and the required two white vertical lights, indicating a tow. Held, that the ferry-boat was in fault for undertaking to pass unnecessarily through the narrow passage between the schooner and the tow; that no rule or settled usage required lights on the tow along-side; and that the alleged illegal practice of tugs to carry two vertical white lights without a tow was not proved, and would not justify the ferry-boat in assuming that there was no tow along-side because additional side lights were not seen; that the navigation of the tug near the piers was not a proximate cause of collision; and that the ferry-boat was solely to blame.</p>

<p>1. Collision — Between Steam and Sail — Evidence.</p> <p>A steamer and barkentine collided on a clear night, either because of the failure of the steamer 1.o see the barkentine’s red light, or because of the absence of such light. The testimony as to whether such red light was burning brightly at the time was irreconcilably conflicting. It appears that the mate of the barkentine had taken down the red light to clean and trim it. He testified that this was done more than an hour before the collision, but he had previously stated that it was done within half an hour of the collision. There were three men on watch on the steamer, none of whom saw the red light until aminute before the collision." The steamer’s lights were plainly visible from the barkentine. Held, that the preponderance of the evidence showed that the collision was caused by the barkentine’s failure to keep her red light brightly burning.</p> <p>8. Same — Bmehgexcy.</p> <p>The fact that the steamer, after discovering the barkentine’s red light, kept on her courso in the attempt to cross the bow of the barkentine, which attempt very nearly succeeded, does not show negligence, sime in such an emergency the captain of the steamer might use his judgment as to the best means of avoiding a collision.</p> <p>8. Same — Duty or Steamek.</p> <p>A steamer is not obliged to moderate her speed on sighting a vessel sailing on the starboard tack in the night, when such vessel’s red light is not visible, since in such case the steamer may infer that the vessel’s course is parallel to its own.</p>

<p>1. Removal oe Causes — Proceedings beeoee Railroad Commissioners.</p> <p>A petition filed by a railroad company with the state railroad commissioners, for the mere purpose of obtaining their consent to the taking of certain land by condemnation proceedings, is not removable, since it is not a suit within tho original jurisdiction of the federal courts.</p> <p>8. Same — Separable Controversy.</p> <p>In such case, the controversy between the railroad company and the owners of the land sought to be taken is separable from that between the company and the town in which the land lies, though part of the land is sought for tho purpose of making a highway in lieu of another highway wanted for railroad purposes.</p>

<p>Federal Courts — Residence of Corporations.</p> <p>A corporation cannot be a resident, within the meaning of Act Cong. 1887, of a-state other than that in which it was incorporated.</p>

<p>1. Limitation of Actions — Cokpokate Stock — Assessments.</p> <p>Where there Is a decree levying an assessment on the stockholders of an insolvent corporation in respect oí their unpaid stock, the statute of limitations does not begin to run against the subscriptions until such decree is rendered.</p> <p>2. COKPOKATIONS — INSOLVENCY—ASSESSMENTS—ACTION—EVIDEN CE.</p> <p>In an action for such assessment, the decree alone is sufficient to show defendants’ liability thereunder, and it is not necessary to put in evidence the whole record in the suit in which it was rendered.</p> <p>8. Same — Release of Stockholders — Compromise.</p> <p>Subsequent to the entry of this decree, another was rendered, providing that if the stockholders should, within a given time, pay a certain proportion of their subscriptions, they should be fully discharged from the debts of the corporation, but that, in default of such payment, their liability under the original decree should remain unaffected. Held, that a stockholder who failed to take advantage of this decree cannot set it up in an action for the original assessment, as a compromise between the corporation and other stockholders, by which he is released from all liabilities.</p> <p>4. Same — Evidence of Subscription.</p> <p>In such an action, the facts that defendant’s name appears on the subscription list of the corporation, and that he paid certain assessments on the stock subscribed, are sufficient evidence that he was a stockholder.</p>

<p>1. Railroad Companies — Acquisition of Competing Road.</p> <p>Rev. St. Mo. § 2569, which prohibits any railroad company within the state from owning', operating, or managing any other parallel or competing railroad within the state, applies only where both the roads are situated within the state, and the competition between the two must be of some practical importance, such as is liable to have an appreciable effect on rates.</p> <p>2. Same.</p> <p>Two railroads which'do not touch at any two common points, and between which for a distaneb of 40 miles another railroad is interposed, and whose traffic, except an unimportant amount, would in no event pass over the other, are not competing lines, within the meaning of the statute.</p> <p>8. Sake.</p> <p>Section 2569, Rev. St. Mo., was intended to give full effect to section 7, art. 12, Const. Mo., and inasmuch as it did not satisfactorily appear that the legislature had either misconstrued or failed to give full effect to the constitution, held, that the court would not grant a preliminary injunction based on a construction of the constitution different from that adopted by the legislature of the state.</p>

Proceeding to establish the will of Matilda P. Jenness, removed from the state court. In the issues which are made up under the- direction of the court, the executor alleges that Matilda P. Jenness died leaving a will. The appellant does not expressly put in issue any question as to the mental condition of the testatrix, the fact of the will, or its due execution. His only allegation is undue influence, and upon this the executor joins issue.

<p>1. Eminent Domain—Condemnation Proceedings—Interest on Award.</p> <p>After the commissioners have reported the value of land condemned to the use of the United States, under Act Cong. Aug. 18,1890, (36 St. at Large, 316,) the owner of the land is entitled to interest on the amount reported, from the time when the right of the government to take the same attaches to the time when payment for the land is made.</p> <p>8. Same—Costs—Allowance.</p> <p>In such proceeding, the owner of the property condemned is entitled to costs and an allowance, in accordance with the provisions of the laws relating to the condemnation of property of the state wherein the property is situated.</p>

At Lawn F. H. Lemon & Co. contracted with the city of Stillwater, in December, 1887, to vest title in the city to two parcels of land, which were to be used by the city for the purposes of a public street; also to widen Main street for a certain distance, so that it should be 50 feet in width; and to do the necessary excavation and filling to make the strip which was added for the purpose of widening the highway conform to the established grade of Main street.

At Law. The case made by the evidence is as follows: Defendant on April 4, 1887, drew a check on the St. Louis National Bank, payable to the order of H., S. & H., a Boston firm, and remitted the same to .them in payment of an account. The check was signed, “H. Brolaski, Agent.” It was deposited by the payees in a Boston bank, and by the latter was indorsed for value to the Fidelity National Bank of Cincinnati, by which latter bank it was remitted toaSt.

On Habeas Corpus. The petitioner, R. M. King, a citizen of Obion count)', Tenn., was in-dieted in the circuit court of that county for creating a common nuisance by working on Sunday. He plowed in his fields on that day, be being a farmer, and that his daily vocation.

At Law Trial of William J. Boose for sending an obscene letter through the mails contrary to Act Cong. Sept. 26, 1888.

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

<p>Patents for Invention — Infringement—Coffee-Mill.</p> <p>Reissued letters patent No. 7,583, dated March 37,1877, granted to Turner Stro-bridge for a coffee-mill having a detachable hopper and grinding shell formed in a single piece, and suspended within the box by the upper part of the hopper or a flange thereon, are not infringed by a coffee-mill having such a hopper and grinding shell, kept in place within the box by a clamping mechanism, whereby the flange of the hopper is pressed up against the under side of the top of the box. The cases of Strobridge v. Lindsay, 3 Fed.Jtep. 693, and Same v. Landers, 11 Fed. Rep. 880, distinguished.</p>

<p>Patents foe Inventions-^Novelty— Construction of Claim.</p> <p>Letters patent No. 259,068 granted June 6, 1882, to Theodore S. Wilkin, for an improvement in machines for stretching saws, are void for want of novelty in the device therein described as a whole, and the claim cannot be limited to the convex or crowned rolls used therein, which are nowhere mentioned in the claims or specifications, though shown in the drawings.</p>

<p>Coij.istosr—Damaoes—Cakgo op Dates—IteNT op House Used bt Date Pickeks.</p> <p>In gathering dates on the river Euphrates, the intending shipper sent an agent up the river, who bought, the dates on the trees, and caused them to be picked and boxed there. A house was necessary to do the work in, and board the men while picking the dates. This house was hired by the year, though used lor about six weeks only. This is the most economical, ii not the only, way to procure the dates. The entire product of one season having been lost on the steam-ship Iberia by collision with the steam-ship Umbria, the shipper claimed as an item, of his damage the rent of the house on the Euphrates, and the expenses -of the agent. On exceptions to the reporto! the commissioner allowing the items, held, that the allowance was proper.</p>