Volume 47 — Federal Reporter

<p>At Law. Action to recover damages for personal injuries.</p>

<p>Execution — Supplementary Proceedings — Money Decree in Equity.</p> <p>A money decree in an equitable suit in a federal court is sufficient to sustain proceedings supplementary to execution.</p>

<p>Deposition — Cross-Examination—Death op Witness.</p> <p>The deposition of a witness on direct examination by plaintiff will not be excluded on the ground that the witness died before he was cross-examined, where defendant procured the cross-examination to be postponed, and the witness died in the mean time.</p>

<p>1. Creditors’ Bill — Return oe Nulla Bona.</p> <p>■ A creditors’ bill cannot be maintained upon a judgment on wbicb execution was issued and returned unsatisfied, when the return does not expressly show that there was no property subject to levy.</p> <p>2. Same — Jurisdiction of Federal Courts.</p> <p>Federal courts have jurisdiction to entertain creditors’ bills, although the demands are upon judgments rendered by a state court.</p> <p>3. Receivers — Appointment.</p> <p>The fact that property subject to levy under a judgment of a state court is unsalable by reason of its unmarketable condition, though valuable, and the further fact that the sheriff is so situated with reference to the property that he cannot execute the writ, is not sufficient to warrant the appointment of a receiver by a federal court.</p>

<p>In Equity. On exceptions to master’s report.</p> <p>On June 1, 1883, defendant executed to complainant, as trustee, a •deed of trust or a mortgage to secure payment of 145 bonds of $1,000 each, payable in 20 years, with semi-annual interest at 7 per cent, per annum. The mortgage covered real estate in the city of Adrian, and the buildings, machinery, wells, mains, water-pipe, rights of way for pipeline, hydrants, and plant used by the mortgagor in operating its works for supplying water to the city of Adrian, under a certain contract, and also to private consumers. .Owing to a deficiency in the quality and quantity of the water supplied by the defendant, the city of Adrian refused payment of the agreed rentals, private patronage fell off, and the mortgagor was plunged into financial difficulties, and soon defaulted in •the payment of the interest on its bonds. Notice of this default, with a request for the foreclosure of the mortgage, was given to the trustee by C. H. Venner, a bondholder, and pursuant thereto, and under the power •contained in the mortgage, the trustee declared its election to consider the whole amount of the mortgage debt due, and accordingly, March 14, 1888, the bill of foreclosure was filed. Venner owned 120, and W. P. -Sheffield, Jr., trustee for the heirs of Alfred Smith, owned the remaining 25, bonds secured by the mortgage. Pending the foreclosure proceedings, the city of Adrian, in due form and pursuant to the terms of its contract with defendant, required the erection of additional hydrants, and the extension of the water-mains and pipes. The deficiency in the water supply necessitated the enlargement of the water-works, and large additions and improvements in its plant. Defendant being without means for this purpose, Mr. Venner, of his own motion, without consulting the trustee or Sheffield, his fellow cestui que trust, and presumably in his own interest as owner of nearly five-sixths of the bonds, advanced the needed funds for the improvements of the works, and the betterment of the water supply and service to meet the requirements of the municipality and retain the customers of the company. These advances, to the amount of $37,954.98, were expended for that purpose, and thereafter the whole plant, with these additions, was operated by Mr. Venner, though nominally by the trustee. All this was done under an agreement between Venner and defendant that the latter should purchase the added property and improvements, and consent to their subjection to the lien of the mortgage for the benefit of the bondholders, and that the advances, with interest, should be first charged on the mortgaged property. To effectuate this agreement Mr. Venner filed a supplemental petition, asking its enforcement as a lien upon the proceeds of the foreclosure sale in priority to the claims of the bondholders, which has been allowed. The bill was taken pro confesso, and a decree passed for $293,853.44, the amount of the bonds with accrued interest to June 15, 1890, and of Vernier’s advance, with interest, and for the sale of the property. The sale was had in January, 1891, and the property was bought by Mr. Venner for $127,000. Shortly after the bill was filed complainant petitioned for and the court granted the trustee an allowance of $1,000 for its services in procuring the enlargement of the works and the increased water supply paid for by Mr. Venner, and for services in operating the works from March 14,1888; when under the terms of the mortgage, and by reason of the mortgagor’s default, they were taken possession of and operated nominally by the trustee, actually by Mr. Venner. On the same petition the court also allowed counsel for complainant $500, “for legal assistance in addition to such legal services as are required in the foreclosure of said mortgage, * * * including</p> <p>such services on foreclosure.” Both allowances were made payable out oí the proceeds of the foreclosure sale. After the sale upon a second petition for further allowances to the trustee and its counsel, a reference was ordered to ascertain and report, among other things, “what would be a reasonable allowance for fees of counsel and solicitors for complainant for services rendered for it in this suit, and also what would be a reasonable compensation to complainant, as trustee, for its services in this suit.” The master reported, allowing the trustee $1,000 for its services in addition to the $.1,000 previously granted, and fixed the counsel fees at $3,500 additional to the $500 previously granted for legal assistance and counsel’s “services on foreclosure. ” After deducting these allowances, taxed costs, the deficit resulting from the operation of the works, unpaid taxes on the property, the cost of extending pipe-lines and of the-improvements and additions paid for by Mr. Venner, with interest, there remains applicable to the payment of the mortgage debt of $293,-353.44, but the sum of $55,201.88. Complainant now asks confirmation of the report including these allowances. William P. Sheffield, Jr., trustee, excepts thereto, and prays that the sums awarded to the trustee and its counsel be disallowed, or, if that be denied, that a proportionate allowance be made to his counsel.</p>

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

<p>1. Ratueoab Companies- — Lease—Execution ov Contract.</p> <p>A contra ot giving one railroad Í rackage rights over part of the line of another company was signed and attested by the proper officers of tiie latter company. It was approved by the executive committee, which, under authority of the board of directors, exercised the powers of the board when it was not in session. Authority to make such a delegation of power had been given to the board by the by-laws, and power to make such by-laws was given to the stockholders by the act of incorporation. At a regular meeting of the stockholders the contract was approved by all the stockholders present, being two-thirds of the entire number. Held, thattha contract was sufficiently executed to bind the corporation, though it had never been formally ratified by the board of directors, and though the notice of the stockholders’ meeting made no mention of the contract.</p> <p>2. Same — Corporate Powers.</p> <p>A contract whereby a railroad company lets another company into joint possession of part of its line for 999 years, at an agreed rental, is not, as between the parties, ultra vires, where such joint possession does not interfere with the present use of such line by the company that owns it.</p> <p>8. Same — Specific Performance.</p> <p>Specific performance of such a contract may be enforced by a court of equity. Following Joy v. St. Louis, 138 U. S. 1,11 Sup. Ct. Rep. 243.</p> <p>4. Same.</p> <p>Where such contract was fairly entered into, and provides for a rental which is nine-tenths of that which the lessor company had previously determined to ask, and the lessee, in reliance on the contract, has abandoned its plans for the construction of an independent line, and has spent more than $1,000,000 in building a road to connect with the leased line, a decree for specific performance should not be refused on the ground that the rental is inadequate, and that the effect of the contract may be to permit disastrous competition between the two roads.</p> <p>5. Same — Consideration.</p> <p>Where one railroad company owns substantially all the stock of another railroad company, a lease of the latter’s line for rent to be paid to the former company is not void for want of consideration, since it amounts merely to an agreement to pay the rent directly to the stockholders.</p>

<p>1. Railroad Mortgage — Equitable Rights of Material-Men — Receivers—Application of Earnings.</p> <p>Where a railroad company whose property is covered by two mortgages buys on credit rails which are necessary for the purpose of keeping its road going, and the road is afterwards placed in the hands of a receiver on application of the second mortgagees, the seller of rails has an equitable right, as against the second mort gagees, to have the earnings of the road in the hands of the receiver applied first to the payment of his claim.</p> <p>3. Same.</p> <p>But he has no such right as against the first mortgagees, even though they have filed cross-bills in the suit, since they are not the ones who applied to the court of equity, and may therefore stand on their legal rights.</p>

<p>At Law.</p> <p>Application for a review of the decision of the board of United States general appraisers, reversing the decision of the collector at Baltimore as to the rate and amount of duty assessed on an oil painting imported per vessel-Carthagenian on August-25,-1890. The case arises under section 15 of the act of June 10, 1890. The collector assessed duty on the article under the act of March 3, 1883. The importer contended that the picture was free of. duty under paragraph 669 of the said law, as one of “a collection of antiquities.” The following opinion was rendered by the board of general appraisers, sitting at the port of New York:</p> <p>“Somerville, General Appraiser. The article under consideration is a valuable picture or oil painting owned by Mr. Robert Garrett, of Baltimore, being a portrait of the Duchesse de Croye. There seems to be little doubt of the fact that it is a work of art, painted by the celebrated artist Rubens long before the year 1700. Its valúe and genuine antiquity are fully corroborated by the cost, which was £3,150, or over $15,000. It was imported on August 25, 1890, and was, therefore, subject to the provisions of the tariff act of March 3, 1883. It is shown that tiie owner of the picture, the appellant, has for some years been making a collection of like works of art by the old masters! which are of genuine antiquity. This collection he now owns, and owned at the'time of the present importation, they being placed in his dwelling-house in the city of Baltimore, and all of which had been admitted free of duty as ‘ collections of antiquities.’ He purchased the picture in question in London, and imported it for the special purpose of adding it to his private collection already on hand, and not for sale. He claims thatitshould be admitted free of duty, under the provisions of paragraph 669 of the tariff act of 1883, (section 2503, 22 U. S. St. at Large, p. 518,) which places on the free list, as exempt from any duty, ‘cabinets of coins, medals, and all other collections of antiquities, ’ We need not review the history of this clause in our tariff legislation, intervening between the years 1846 and 1870, or even the later act of October 1, 1890. This is referred to in U. S. v. Sixty-Five Terra-Cotta Vases, 10 Fed. Rep. 880, 18 Fed. Rep. 508. If the rule of ejusdem generis is to govern, which restricts a general word following particular and specified words to tiie same genus as those words, then no collection of antiquities can be admitted to the free list unless they are of a kind analogous to ‘ cabinets of coins, medals;’ etc. But this is a mere rule of construction, not of absolute application in all cases. It is followed upon the theory that words are intended ordinarily by the law-makers to take meaning and color from other words with which they are associated in the same phrase or sentence. Therule may, therefore, be rejected when there is any adequate reason to show that the general word was not used in the limited order of signification attached to the particular and specific words. End. Interp. St. §§ 405, 408, et seq. It is our judgment that the history of these clauses repels the idea that no other collection of antiquities were intended to be exempt from duty except those of a kindred kind with ‘old coins and medals.’ This construction would narrow (he interpretation not only beyond the letter of the statute, but; beyond the manifest policy of its enactment as apparently designed by congress, which was to encourage the collection, among other things, of antique works and things of art. The uniform construction of the treasury department, supported by a long line of decisions, and the practice of the custom-houses, support this conclusion; and this practical interpretation of the law, even if of doubtful propriety, is entitled to much respect by the courts. Robertson v. Downing, 127 U. S. 608, 8 Sup. Ct. Rep. 1328; 16 Op. Altys. Gen. 354.</p> <p>“But one other inquiry remains. Can a single article of genuine antiquity bo construed to come within the statute, when it is to be added to others owned by the importer, and already constituting a collection on hand? We have heretofore decided this in the affirmative, and adhere to that conclusion. The decision or ¡he collector was erroneous, and will be reversed. He is authorized to reliquidate the entry in accordance with law.”</p>

<p>L Action on Judgment — Variance.</p> <p>Where a complaint upon a judgment alleges that it was rendered in an action wherein the parties to this suit were plaintiff and defendant, proof of a judgment rendered against defendant and another person is a fatal variance, and there can be no recovery thereunder.</p> <p>2. Same — Pleading—General Denial.</p> <p>In an action on a judgment a general denial under the Code of Washington is equivalent to pleading the general issue of nul tiel record, and the burden is upon the plaintiff to prove the record sued upon.</p>

<p>1. Master and Servant — Incompetent Fellow-Servant — Evidence.</p> <p>In an action for personal injuries caused by the negligent handling of a winch it appeared that while the vessel was discharging its cargo a man from the shore was put at the winch. Signals were given by a whistle, and plaintiff testified that the winchman told him he was deaf, and that he must blow loud; that the winch-man did not follow signals correctly; and that the draft which struck plaintiff was carried on after the signal to stop, and lowered too fast while he was reaching for it. Held sufficient to sustain a verdict that the winchman was incompetent, notwithstanding that he testified that he was not deaf, and others testified that he was skillful and attentive.</p> <p>Z. Evidence — Res Gestae.</p> <p>The declaration of the winchman that he was deaf, made in connection with a request to the plaintiff in the course of their employment, was a part of the res gestee, and evidence of deafness.</p>

<p>1. Eviuexce — Declabatios’s—Res Gtesm,.</p> <p>'Where the issue presented is as to whether a lawyer loofc a contract in Ills own name for the benefit of his client, anything which he xnay have said about blia transaction to others, which was no part of it, is not admissible as pari of the res gestw.</p> <p>2, DocumI'OTS — Ricura or Inspection.</p> <p>The fact that counsel in cross-examination hands the witness documents for identification, does not give opposing counsel the right to see them. When the same are not offered in evidence, or the contents gone into, there is no ground for inspection.</p>

<p>1. District Attorneys — Compensation.</p> <p>Services rendered by a United States district attorney in defending an action brought against the United States by an ex-district attorney for fees alleged to have been earned by the latter while in office fall within Rev. St. U. S. § 834, and he cannot recover as compensation for such services more' than $10, the amount fixed by said section for fees of attorneys in actions at law.</p> <p>2. Same — Violation of Revenue Laws.</p> <p>Rev. St. U. S. § 838, makes it the duty of a district attorney to institute proceed-. ings for the violation of internal revenue laws, reported to him by the collector, “unless upon inquiry and examination he shall decide that such proceedings cannot possibly be sustained, or that the ends of public justice do not require that such proceedings he instituted, ” and provides that in such cases the district attorney shall receive such sum as the secretary of the treasury shaU deem just and reasonable, on the certificate of the judge before whom such cases are tried and disposed of. Meld, that a district attorney may recover reasonable compensation for services rendered and expenses incurred in making an examination into alleged violations of the internal revenue laws, reported to him by the collector, though no proceedings are instituted in court. Following In re Account of District Attorney, 23 Fed. Rep. 26.</p> <p>8. Same — Violation of Immigration Laws.</p> <p>The district attorney is not entitled to fees for services performed in actions instituted by him to recover penalties for alleged violation of the immigration laws by the importation of aliens under a contract to labor, where such suits were eventually compromised and dismissed bjr the government without any judgment being rendered; there being no statute giving fees in such oases.</p> <p>4. Same — Forfeiture—Charter of National Bank.</p> <p>For services performed by the district attorney in bringing a suit against a national hank, and obtaining a forfeiture of its charter, he is not entitled to more than $10, the fees prescribed by section 834; there being no other law of the United States giving a compensation to a district attorney for such services.</p>

<p>1» Sale — Breach of Warranty — Threatened Suit for Infringement.</p> <p>In an action for money duo plaintiff on written contract for the sale and erection of an electric light plant, it is no defense that defendant had heen notified that certain essential features of the plant were infringements of patents granted a third party, and claims made for damages and snits threatened for such infringement, since these facts do not constitute a breach of the plaintiff’s implied warranty of title.</p> <p>3. Same — Pakol Evidence to Vary Written Contract.</p> <p>Evidence of a verbal promise to give a bond indemnifying defendant against claims for infringement being inadmissible, failure to give such bond is no defense where it is not alleged that the written agreement was procured on the faith of such verbal promise, nor that the promise was omitted from the written contract by fraud, accident, or mistake.</p> <p>8. Same — Averment of Legal Conclusion.</p> <p>An averment that plaintiff has not complied with his contract, and that defendant has been put to great delay, expense, and damage, is merely a legal conclusion, and is no defense.</p> <p>4. Same — Evasive Statement.</p> <p>An averment in an affidavit of defense that defendant has heen sued by a third party on account of an item “which, as he understands, is a part of plaintiff’s claim, ” is insufficient where plaintiff’s statement shows a credit for such item, and-the affidavit does not specifically admit or deny liability to the third party, nor- slate that plaintiff’s statement is wrong, nor claim a further credit on account oí the item.</p>

<p>1. Patents for Inventions — Electric Batteries — Infringement.</p> <p>The claim of letters patent No. 260,654, issued July 4, 1882, to Charles F. Brush, for improvement in forming the plates of secondary electric batteries, consisting in forming receptacles for oxide of lead in its surface, then applying oxide of lead to the plate and within such receptacles, and afterwards subjecting the oxide of lead to pressure, is not infringed by applying the oxide to the plates with a wooden trowel in the hands of the workman without afterwards subjecting it to pressure.</p> <p>2. Same — Patentability—Invention.</p> <p>Claims Nos. Hand 13 of letters patent No. 337,299, issued March 2,1886, to Charles F. Brush, for improvements in secondary electric batteries, are void for lack of invention, since such claims refer only to the use of red lead in the preparation of the plates, and the specification of the patent states that red lead is not as good for the purpose as peroxide of lead, but may be used instead of the peroxide, because it is cheaper.</p> <p>8. Same — Anticipation.</p> <p>Letters patent No. 337,299, issued March 2, 1886, to Charles F. Brush for improvements in secondary electric batteries, are not invalidated by letters patent No. 260,653 and No. 276,155, issued to him prior to 1886 for other improvements subsidia^ to the main invention described in said patent No. 337,299, for the reason that said patent, though issued after the others, was applied for before them, and is referred to in their specifications. Delay in the patent-office, for which the inventor is in no way responsible, cannot be charged to him.</p> <p>4. Same — Forfeiture—Foreign Patent.</p> <p>Said patents No. 337,299 and No. 266,090 did not expire with the Italian patent issued to Mr. Brush, Augusts, 1882, since the invention described in the Italian patent is not identical with those described in the United States patents.</p>

In Equity. Suit for infringing letters patent No. 240,148, granted April 12,1881, to complainant James Kilboume for a sink.

<p>1. Patents tor Inventions — Novelty—Bottle Stoppers.</p> <p>Letters patent No. 488,709, issued October 31,1890, to William Painter, for a davice lor extracting an arched bottle stopper by attaching a headed stud to the crown <>£ the arch, and applying force thereto, so as to cause a retroversion of the arch destructive of the lateral pressure of the stopper, and so rendering its removal easy, were not anticipated by the ordinary stoppers of wash-basins and bath-tubs, or by ordinary ink-bottlo corks with their attendant corkscrews.</p> <p>3, Same — Anttcipatios.</p> <p>Nor was said patent anticipated by the statement in letters patent No. 337,099, issued in September, 1885, to said William Fainter, that “it is sometimes desirable to remove the disk stopper without the use of a tool. In such oases I form the disk with a lug or ear. 1 may also «.Lack to the disk aD eye of wire, like the shank of a button, or a string, cord, or other device to facilitate its removal. ”</p> <p>ñ. Fíame — Equity Pleading — DiiMumam.</p> <p>Tho validity of a patent rnajr be attacked for lack of inventive novelty by demurrer to a bill to restrain infringement, although the bill properly alleges the novelty and usefulness of the patented device. Following Brown v. Piper, 91 IT. ». 44.</p> <p>4. Same — Judicial Notice.</p> <p>Courts will not take judicial notice of patents for inventions.</p>

<p>Patents for Inventions — Infringement—Preliminary Injunction.</p> <p>Where, on motion for a preliminary injunction to restrain infringement, it is necessary for the patentee to show that he made the invention some years before he applied for a patent, in order to meet the charge of anticipation, the finding of the examiner of interferences to the effect that the patentee did make the invention at the earlier date is not sufficient proof of the fact to warrant issuing the injunction when the evidence on which the examiner based his finding is not preserved.</p>

<p>Patents foe Inventions — Patentable Invention — Pyrotechnic Signal.</p> <p>The first claim of letters patent No. 337,093, issued February 1,1881, to "William F. Coston, for a pyrotechnic signal, having one or more colored lights arranged to burn and he exhibited from the hand, or at the surface, with one or more aerial signal lights arranged to he thrown into the air, and exhibited while aloft, is void for want of patentable invention.</p>

<p>Patent for Design- — Penalty for Unlicensed Sale-Evidence.</p> <p>^Complainant deposited in tlio mail, properly addressed to defendant company, a circular reciting that complainant’s mantels had been patented by design patents, and that parties manufacturing after such designs would be prosecuted. Two of the throe members of defendant Firm testified that they had no knowledge of the receipt of the circular by their firm. Complainant’s agent testified that lie had a conversation with S., one of defendant firm, at its office, and said to such member that he saw they had some mantels made by one G-. after complainant’s design; that S. admitted the fact, and, when asked if he knew that complainant had design patents, admitted that he did, and asked what complainant intended to do about the matter, to which the agent replied that he would try to protect his rights. Held that, while the presumption that defendant firm received the circular was not overcome, the testimony did not warrant the conclusion that defendant knew that G-. had manufactured mantels in imitation of complainant’s design without license, so as to make defendant liable for the penalty prescribed by Act Cong. Feb. 4,1887.</p>

<p>Maiiitime Lies — Dischaboing Vessel — Costkact with Mastei;.</p> <p>When libelant, a longshoreman, began discharging a vessel he was in the employ oí a stevedore, but, the stevedore having lelt. libelant continued the work with the crew of the vessel, and on a verba! contract with the master. B.eld, that the service was maritime, and rendered on the credit of the vessel, and that libelant had acquired a lion on the vessel for the amount of the compensation.</p>

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

<p>Í. Collision — New Yokk Habbok — Sfekd Neab Pub Line.</p> <p>The steam-ship Eldorado, coming in from soa, was proceeding near tho New York piers towards her slip,when she collided with.a railroad float, moving' out from tho docks in charge of two tugs. Held, that if it were the fact, as the master of the steam-ship testified, that the heavy float moved out 921 feat after he first saw her coming past the end of the lower pier, the inability of the steamer to come to a slop showed that she was moving at too high a rate of speed; if, on tho other hand, tho evidence for the float was true that it was struck when only ono-third or its length outside the pier, it showed that the steam-ship was running too near the piers; and, on either hypothesis, the steamer should bo considered in fault,</p> <p>8. Samis — 'Towing- out or Slip--Nuoliosnom — Look-Out.</p> <p>The tugs in charge of a railroad float wore held in fault for taking the float out oí a slip into the North river without first observing whether any boats were approaching along the docks, without giving any warning whistle, and at a time when the fog in the air was such as to induce vessels in the river to run near the docks, by reason of which neglect tho float was struck by a steamer which had been coming up stream near the piers, in plain sight.</p>

<p>1. Shipping — Chabteh-Party—Construction—Time.</p> <p>A charter-party for the period of six months contained the clause: “Vessel, if kept over the chai'ter time, the same rate as the charter, with the privilege of six months over the charter if wanted. ” Held, that the charterers had the right to keep the vessel for such time as they wished, not exceeding six months additional in all, at the charter price.</p> <p>2. Same — Place op Delivery — Tender.</p> <p>Where the charterer is to deliver the vessel to the owner at the home port or another, at the latter’s option, tender of her at either port is sufficient to relieve the charterers of further liability, where the owner fails to exercise the option.</p>

<p>L Carriers or Cargo — Delivery—Receipt or Cargo by Consignee.</p> <p>On a vessel’s arrival at her port of discharge, no owner appeared to receive the cargo, and it was placed in store by the master, subject to the ship’s lien for freight. Subsequently, on suit begun against the cargo for the freight, the owner appeared and took the cargo, giving security for the freight. Held, that the cargo owner could not thereafter contend that no delivery had been made.</p> <p>Ü. Same — Discharge into Store — Right Delivery.</p> <p>A vessel with a cargo of sugar arrived at her destination with water in her hold, due to perils of the sea, and which was melting the cargo. No consignee appeared with authority to claim the cargo. On surveys by the port-warden and the surveyor of the Marine Underwriters, an immediate discharge was recommended. The master in good faith placed the cargo in stor^. Held, that it was a reasonable and legal discharge, and constituted a right delivery, entitling the ship to freight.</p> <p>8. Same — Expenses or Survey.</p> <p>Under such circumstances, the vessel is entitled to recover of the cargo the expenses of the survey.</p> <p>i. Same — Consignee’s Authority — Right or Ship to Enow.</p> <p>When by bills of lading cargo is consigned to order, it is the right of the ship to be informed, by an inspection of the indorsements on the bills of lading that have been signed and delivered by the master, as to who is entitled to receive the cargo.</p>

<p>In Admiralty. For former report see 45 Fed. Rep. 897.</p>

<p>Neutrality Laws — Violation—Forfeiture.</p> <p>Rev. St. U. S. § 5283, provides for the forfeiture of every vessel which, within the limits of the United States, is fitted out and armed, or attempted to he so, to he employed in the service of any foreign prince, state, or people to commit hostilities against the subjects, citizens, or property of a prince, state, or people with which the United States are at peace. Held, that under this section no forfeiture can he claimed of a vessel which is only employed to transport arms and munitions of war to a vessel fitting out to pursue the forbidden warlike enterprises.</p>

<p>In Admiralty. Libel in rem for supplies and advances.</p>

<p>In Admiralty.</p> <p>This was a libel for a collision, whereby the schooner General Hall was sunk about five miles easterly from Nausett light, off Cape Cod, at about 11 o’clock on the evening of April 4, 1891. It appeared from the testimony, without substantial contradiction, that the wind was N. W. by N., and moderate; the sky was overcast, but the air was clear; that the schooner was close-hauled on the port tack, and headed about N. by E.; that to the leeward of the General Hall was the schooner Hattie S. Collins, on the same tack, and with the same course, and a little ahead of the Hall, and distant from her about 200 yards; that the steam-yacht Seneca was heading about S. by W., nearly head-on to the schooner, but on a course a little to the westward of the course of the schooner, and was proceeding at about the rate of 10 miles an hour, and was about three-eighths of a mile northward from the Hall; that from these positions the vessels so proceeded that the steamer struck the schooner on the starboard side about amidships, cutting her down, and bringing down her mainmast; and that the schooner sank almost immediately afterwards. The master, mate, steward, and man. at the wheel of the schooner testified that she did not tack or change her course, except that just before the collision, and when it could no longer be prevented, the wheel was put to starboard, in the hope to lessen the force of the blow, and the schooner luffed about' one point. This testimony was corroborated by the testimony of the master of the schooner Hattie S. Collins. Alonzo P. Bliven, a designer and builder of yachts, who had bought the yacht in Boston for her present owner, testified that he was on deck acting as lookout at the time of the collision, and that the schooner came in stays, and went about when the vessels were about 300 yards apart, bringing the schooner across the bow of the yacht, and making the collision inevitable. Mr. Bliven also testified that the master of the schooner, after he was taken on board the yacht, said that he had made a mistake in going about. Kemp, the valet of Mr. Langley, the owner of the yacht, testified that the master of the schooner admitted the collision was his fault; and Dean, the cook of the yacht, gave similar testimony. There was no evidence that any effort had been made to obtain the presence or the testimony of any other of the persons who were on the yacht at the time of the collision. The master of the schooner denied that he had said he was in fault.</p>

<p>In Admiralty.</p> <p>On November 26, 1889, the propeller Wilhelm, with the schooners Hears and Midnight in tow, all lumber laden, left the port of Cheboygan, Mich., hound to Tawas. At 4 a. m., November 27th, the tow passed Thunder Bay light, at which time the weather was unsettled, wind from the eastward, and sea moderate. About 7 o’clock the tow was struck by a heavy squall from about E. N. E., accompanied by snow, and from that time until the loss of the barges on Fish point, at about 2 o’clock p. m. , the wind blew a. gale from E. N. E. to N. E., accompanied by frequent violent snow squalls and a heavy sea. About 9 a. m., when off Sturgeon point, the Wilhelm lost her starboard deck load, causing her to list so much to port as to interfere with her steering, at which time a cast of her lead gave six fathoms of water. Whereupon she rounded to and headed the wind, until her cargo was trimmed to right her, when she went off upon her course, which was a little to windward of the usual running course for Tawas. About 1:30 p. m, a cast of the lead gave six fathoms. A blinding snow-storm was then raging, and the master of the Wilhelm, deeming himself far enough to the southward until he could ascertain his exact position, decided to haul into the wind, and hold there, until it broke so he could pick up the land. After rounding to, and while holding head to wind and sea, the line between the Mears and Wilhelm parted, and both schooners were driven on shore near Fish point, and became total wrecks. The owners of the Mears file their libel against the Wilhelm, charging as the cause of their loss negligent management in the following particulars: (1) In that said propeller attempted to tow said schooners Mears and Midnight across Lake Huron during a violent and increasing storm, without regard to the condition of the weather existing after passing Thunder Bay light, instead of taking said tow to a near, accessible, and safe shelter in Thunder Bay, as she could have done without difficulty, and was required by ordinary care and seamanship. (2) In negligently failing to come about and hold her said tow head to wind and seas after the loss of her deck load. (3) In negligently hugging the west shore of Lake Huron in a thick, driving snow-storm, with a heavy wind and sea from the eastward. (4) In negligently turning at full speed into the lake so sharply as to part the tow-line to said Mears, whereby said schooner was necessarily rendered helpless, in such close proximity to a lee shore that her destruction was inevitable.</p>

<p>1. Judgment — Collateral Attack — Attachment.</p> <p>A judgment in attachment on real property cannot be collaterally questioned by creditors of the defendant where it appears that the court rendering the judgment had obtained jurisdiction over the property. Following Cooper v. Reynolds, 10 Wall. 308.</p> <p>2. Foreclosure — Juhisuiction or Federal Court — Parties.</p> <p>Where a mortgagor and the trustee of the mortgage are citizens of the same state, the holders of bonds secured by the mortgage cannot bring suit in a federal court to foreclose the mortgage in their own name, without showing reason why the suit is not brought by the trustee.</p>

In Equity. Bill by George II. Moore and others against John Meyer and others to set aside certain conveyances as in fraud of creditors, and to have them adjudged to constitute an assignment.

<p>Municipal Bonds — Validity—Estoppel—Constitutional Limit op Debt.</p> <p>Where county bonds are issued in excess of the constitutional limit of indebtedness, a recital in the bonds that they are issued by virtue of a legislative act which recites the constitutional limitation, and that all the provisions of such act have been fully complied with, does not estop the county from denying the validity ef the bonds.</p>

<p>At Law. Appeal from decision of board of United States general appraisers.</p> <p>Perry & Ryer imported into the port of New York, per Rugía, November 24, 1890, certain stained or painted glass windows or paintings on glass which were specially imported in good faith for the use of the Convent of the Sacred Heart at Philadelphia, and not intended for sale. They were invoiced as “three cases paintings,” and were returned by the appraiser as attaining to the rank of works of art. The collector of customs at the port of New York assessed duty thereon at 45 per centum ad valorem under the provisions of paragraph 122 of Schedule B of the tariff act of October 1, 1890, providing for that rate of duty upon “all stained or painted window-glass and stained or painted glass windows.” The importers duly protested, claiming that the said paintings were entitled to exemption from duty under the provision in the free list of said a.ct, paragraph 677, for “paintings * * * specially imported In good faith for the use of any society or institution incorporated or established for religious * * * purposes, and not intended for sale.”</p> <p>The importers duly appealed from the decision of the collector to the board of United States general appraisers, under the act of June 10,1890, entitled “An act to simplify the laws in relation to the collection of the revenues.” The hoard of United States general appraisers, on March 6, 1891, affirmed the decision of the collector. S. S. 10,902 G. A. 397. The importers thereupon made application under section 15 of the act of June 10, 1890, for a review by the United States circuit court of the questions of law and fact involved in such decision. The appeal was heard upon the return of the board of United States general appraisers, filed in the United States circuit court on March 28,1891, and upon additional evidence taken before lion. George II. Sharpe, one of said general appraisers, as provided by law.</p>

At Law. This is an indictment for an alleged violation of certain provisions of the interstate commerce act, in selling tickets at less than the rates scheduled, published, and posted in the proper places,-and filed with the interstate commerce commission. The indictment consists of four counts, the second and fourth of which are merely formal.

<p>At Law. Indictment for sending lottery circulars through the mails.</p>

<p>Patents for Inventions — Shank Stiffener — Novei/tv.</p> <p>Tho first claim of letters patent No. 367,484, (Watson patent,) for a machine for compressing shank stiffeners by two rotating dies or compressing rollers, the meeting faces of which present a recess with one straight and one curved face, thereby curving one face of the stiffener transversely, combined with means for rotating the rollers, and a lilting plate to assist in curving the shank longitudinally; and the sixth claim of said patent for a method of finishing tho edges of shank stiffeners by cutting out a blank from a sheet of material, leaving it with beveled edges and obtuso angled oornors, and thereafter passing tho same between rollers having dies with rounded edges to round the obtuse angles and beveled portions as cut, — are merely adaptations of old and well-known mechanism and processes to a now use, with only such changes and modifications, none of which are novel, as are necessary to make them available for the new use.</p>

<p>Patents for Inventions — Sewing-Machines—Infringement.</p> <p>The nineteenth claim of letters patent No. 253,166, issued January 81, 1882, to Duncan H. Campbell, for an improvement in sewing-machines, consisting of a combination of a hook-needle, thread-arm, and thread-eye, with operating mechanism for the arm and eye, which causes the eye to first carry and deliver the thread to the arm, and thence deliver it to the needle, and also causes the arm to merely retain and release the thread delivered to it, so that the arm is prevented from abrading the thread, is infringed by awelting-maohine and a stitching-machine having the same combination of needle, arm, and eye, with somewhat different mechanism, performing the same function, the only difference being that in the welt-machine the relative motions of the arm and eye are slightly different, and in the stitching-machine the arm is stationary, and the motion, which, in the Campbell machine, transfers the thread to the arm, is given to the eye.</p>

In Admiralty. The ship Tennasserim, laden with sugar, from Havana, bound for How York, went ashore on a portion of the Florida reef known as “Molasses” or “Little French Beef,” the morning of the 19th August, 1891. The libelants, a portion of whom were licensed wreckers of the district, with several schooners, assisted by a large number of men from the shore, in small boats, offered their assistance.

<p>1. Collision — Steamers — Crossing Courses — Article 19 —Construction—Privileged Vessel must Port on Giving One Whistle — Resuming Prior Course— Duty to Stop.</p> <p>Article 19 of tlie international rules of 1885 requires the vessol that gives a signal of one or two whistles to change her course to the right or to the left by at least some substantial change of heading, and to adhere to the change until the danger is over, or some new maneuver becomes necessary, provided no obstruction to such navigation exists. Semble that the privileged vessel, not being under any stress of necessity, has no authority to take the initiative by giving such a signal, under article 19, it being her duty under article 22 to “keep her course. ” Whether, under circumstances of doubt which has the right of way, such an initiative signal should be deemed a waiver of the right of way, queere.</p> <p>2. Same — Sandt Hook — Main and South Channels.</p> <p>The steamer La C., outward bound at night, by the main ship channel, past Sandy Hook, on the ebb-tide, saw, 23 degrees .on her starboard hand the steamer L., coming up the south channel, about two miles off, bound up the swash, and making with La. C. an angle of 10% points. La. C. was going at half speed, (10% knots,) the L., full speed, (9 knots;) or, allowing for tide, the former nearly 12 knots over the ground, the latter about 7% knots. La C., on account of her great draft of 25% feet, was limited to the channel. The L., drawing 19% feet, could go anywhere. When the vessels were about three-quarters of a mile apart, and no change of bearing being seen, just as La C. was about to give a signal of two whistles, L. gave her a signal of one whistle, to which La C. replied with one. L. ported enough to change her head to starboard “ half a point or a point, ” and then resumed her former course substantially, heading up the swash channel as bofore. Soon after, La C. stopped her engines, and in a few seconds reversed full speed, with a signal of three whistles, and nearly stopped in going about 1,350 feet, including tide, when her stem struck and entered the L.’s port quarter two feet only, at about right angles. The L. hard a-ported on hearing the three whistles, and kept on at full speed, changing her heading about four points. Held, that the L. had violated article 19 in not making any substantial change to starboard, as her-one whistle required; also articles 19 and 22, in coming back to her former course, and article 18, in not reversing;; and, it appearing that La C. reversed in time to avoid collision had the L. preserved her course to starboard, or had she made and kept any substantial change to starboard as her whistle promised, La C. was without fault, and the whole blame rested on the L.</p>

Application to tlic circuit judge for the allowance of a writ of error to the circuit court of appeals, and for the issue of a citation -thereon.

<p>1. Trust — Conveyance to Creditors — Enforcement.</p> <p>Where a stale statute provides that a deed made by a debtor, conveying lands to secure the payment oí his debts, shall convey the title, but provides also that the creditor shall reconvey to the debtor on the payment of the debt, by such a deed a trust for the benefit of both parties is created for the purposes specified, which trust, in a proper case, is within the cognizance of a court of equity.</p> <p>S. Same — Reconveyance—Lien.</p> <p>Although the slate statute provides that after judgment at common law the creditors taking such a deed may file a reconveyance to the debtor in the clerk’s office of the superior court of the state, iind thus create a lien against the land superior to any other judgment or incumbrance whatever, this proceeding will have no such effect in a court of law of the United States, and a creditor seeking to assert the superior lien created by the trust-deed must proceed in equity.</p> <p>3. Equity — Vacating Judgment.</p> <p>A bill brought by a third party, holding an equitable title to the land so conveyed, and also claiming under an execution sale antedating the judgment above described, seeking to have said judgment declared a nullity, and to enjoin the marshal from dispossessing him thereunder, will not be dismissed on demurrer. i. Bill or Discovery — Interrogatories.</p> <p>Interrogatories in the bill seeking to compel respondents to make discovery, and annex copies of correspondence with persons not parties, for the purpose of developing the system by which they carried on the business of loaning money, are improper, and should be stricken out.</p>

<p>1. Mechanic’s Lien — Property Subject to — Coke-Oven.</p> <p>A coke-oven is not a building for the construction of which a mechanic’s lien Is given by Act Pa. June 16,1836, § 1, and amendatory acts, providing that every building erected in this commonwealth shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for, or about the erection or construction of, the same.</p> <p>2. Same — Preparation op Ground for Building — Mortgage—Priority.</p> <p>Where the contract provided that the ground on which the coke-ovens were to be placed by the contractor must be cleared of all stumps and other material that would render their foundations insecure, such preparatory work by the owner is not the commencement of building, within the meaning of Act Pa. June 16,1836, § 10, providing that the lien therein given shall be preferred to every other lien or incumbrance attaching to the building or ground after the commencement of such building; and a mortgage on the premises executed after such work was done, and before the construction of the ovens was begun, has priority over the mechanic’s lien.</p>

<p>Account Stated — Reopening—Lapse op Time.</p> <p>Plaintiff and defendant entered into an agreement by which plaintiff conveyed to defendant an undivided half interest in certain lands, water-rights, and ditches in consideration of defendant’s advancing a certain sum to be expended in improving the property under the mutual direction and consent of both parties, which was to be repaid defendant out of the first money realized from sales or loans upon the property. After some progress had been made in the work of improvement, the parties disagreed as to the proper method of conducting it, and another agreement was made, by which defendant was to reconvey his half interest to plaintiff on payment at a certain time of the sum agreed to be advanced, and one-half of the amount expended in excess of that sum. The contract recited that the total of these two amounts was a stated balance of the moneys advanced and expended by defendant, and at the same time plaintiff executed a mortgage on his undivided half interest for one-half of the amount advanced by defendant in excess of the sum originally agreed on. Plaintiff never tendered the amount stipulated in the second agreement, and there was no evidence of any fraud, imposition, or undue advantage in procuring it. Held, that a court of equity would not, after the lapse of eight or ten years, readjust the accounts which the parties had agreed to show a stated balance between them.</p>

<p>1. Fraudulent Conveyance to Wipe — Evidence.</p> <p>This suit to set aside a voluntary settlement by a husband upon his wife was brought by his assignees in bankruptcy, and later was prosecuted by one to whom the assignees conveyed pendente lite. The proofs examined, and conclusion reached that the transaction was free from fraud, and not impeachable by the assignees ot their vendee.</p> <p>8 Same — Laches.</p> <p>The plaintiffs’ sluggishness in pressing the suit, and their great delay in bringing the cause to final hearing, criticised unfavorably.</p> <p>3. Same — Rights op Creditors.</p> <p>Where a voluntary conveyance of real estate by a husband to bis wife and its subsequent improvement by him were without actual fraud, and there was no intention to delay or hinder the creditors of the husband, only his existing creditors had a right to'assail the conveyance.</p> <p>4. Same — Improvement oe Property Conveyed.</p> <p>Where, by a voluntary conveyance by a husband to his wife, she acquired a valid title to land, expenditures made bona fide by the husband more than a year after-wards in its improvement could not have the effect of changing the ownership in whole or in part, although 18 months later he was adjudged a bankrupt.</p> <p>5. Same.</p> <p>Where such expenditures were made by the husband without fraudulent intent towards his creditors, and were innocently acquiesced in by the wife, there is no ground for fastening a charge on the land for the value of the improvements upon a hill filed by the husband’s assignees in bankruptcy.</p>

In Equity, The bill is for the partition of 161 4-10 acres of land, situate on Price’s Hill, in the city of Cincinnati, county of Hamilton, and state of Ohio. The complainants claim to be seised in fee of one undivided fifth part of said land, and that those of the defendants who are in possession, being nearly 300 in number, are without claim or color of title as against them; wherefore they pray for partition, and for an accounting of rents and profits.

<p>In Equity. Bill by John H. Devereux, Jr., against Howard Fleming, copartners, for an injunction, a receiver, and an account.</p>

<p>1. Public Lands — Grant by State — Constructive Possession.</p> <p>A grant from the commonwealth of Virginia for land not previously granted, conveyed to the grantee therein not only the title of the commonwealth therein, but the constructive possession of the land to the extent of its boundaries.</p> <p>2. Same — Subsequent Grant of Same Premises.</p> <p>A subsequent grant to another, covering a part of lands previously granted, did not vest in the grantee either the title or the constructive possession of such previously granted lands.</p> <p>8. Same — Lands Forfeited to State.</p> <p>A tract of land forfeited to the commonwealth of Virginia, or the title to which vested in that commonwealth by purchase at a sale thereof for the non-payment of the taxes thereon, situate in any of the counties now forming parts of the state of West Virginia, and not disposed of prior to the formation of that state, became the property of that state on the 20th day of June, 1863, subject to redemption by the former owner within five years from and. after that date, as provided in the constitution and laws of the state; and, when not so redeemed, the land became the absolute property of the state of West Virginia, and must bo sold for the benefit of the school fund of the state, if not already so disposed of.</p> <p>4. Same — Sale for Benefit of School Fund.</p> <p>All lands within the counties now forming the state of West Virginia, the title to which was in the commonwealth of Virginia on the 20th day of June, 1863, when the first constitution of West Virginia took effect, became the property of the state of West Virginia at that date, except such as were subject to redemption by the former owner as aforesaid, and must be sold for the berie/it of tho school fund of the state, if not already so disposed of.</p> <p>5. Same — Taxation.</p> <p>Lands belonging to the state of West Virginia, whether as forfeited, waste, and unappropriated, or otherwise, are not the subjects of entry for taxation on the land-books of any county, and arc exempt from all taxation, state or local; and the entry of such land upon tho land-books of any county, and a charge of taxes thereon, is illegal, null, and void for any and all purposes whatever.</p> <p>6. Same — Tax-Salf,.</p> <p>The return of any such lands as delinquent for the non-payment of the taxes charged thereon, and the sale thereof for such taxes, are illegal, null, and void, and the purchaser of any such lands at such sale derives no title or right of any sort to the lands so purchased.</p> <p>7. Same — Effect of Tax-Deed.</p> <p>A deed executed to the purchaser of such lands, or to another by his direction or otherwise, is Inoperative, null, and void for any and all purposes whatever, and the grantee in every such deed, having no right or title to the lands therein attempted to be conveyed”in himself, can convey no sox-t of right or title to the lands therein mentioned to another.</p> <p>8. Same — Subsequent Purchasers.</p> <p>Every such, deed, and the proceedings leading to its execution, being absolutely illegal, null, and void, a subsequent purchaser of tho same lands fx-om a person holding or claiming mediately ox' immediately under any such sale, purchase, and deed derives no right or title to the lands so purchased, whether he has any actual notice of 1he facts which rendered such sale, purchase, and deed illegal, null, and void or not.</p> <p>9. Same — ■Reukmi’tion of Forfeited Lands — Constitutional Law.</p> <p>The act of the legislature of Vv est Virginia allowing tho former owner of lands forfeited to that state to redeem the same from such forfeiture is valid and constitutional.</p> <p>10. Tax-Sale — Report of Sheriff.</p> <p>It was the duty of the sheriff making a sale of lands for the non-payment of the taxes assessed thereon in West Virginia, under the law of that state as it was in 1869, to state in his report of sale the estato in said lands so sold by him, and his failure to so state and report rendered his sale absolutely null and void, even if it was in ail other respects legal and valid.</p> <p>11. Adverse Possession- — Several Parcels Held under Different Titles.</p> <p>Sovei-al adjoining and contiguous tracts and parcels of land, owned and held by the same person under different titles, constitute for the purposes of possession but one tract, in law, and, if the owner thereof has the actual possession and occupation of any part of said lands, such possession, in tho absence of an adverse possession by another of some part of the lands so held and owned by him, extends to the exterior boundaries of the whole of his said lands.</p> <p>12. Same — Ouster.</p> <p>A person in the actual possession and occupation of lands owned by him under the older title thereto cannot be ousted from such possession by the entry thereon by another claiming undex' a title junior to that of the owner of the elder title, except to the extent of the actual possession and occupation of such junior claimant; and it is incumbent upon such junior claimant to show by proof the extent of his said possession and occupation, to make it available for any purpose.</p> <p> (Syllabus by the Court.) </p>

This action was brought on August 29, 1888, in the superior court of the city of New York, to recover, with interest, the sum of $300, claimed to have been illegally exacted as excessive customs duties of the plaintiffs by the defendant as collector of customs, was removed on September 13, 1888, by the defendant by a writ of certiorari, from the said superior court into the United States circuit court for the southern district of New York, and on May 21 and 22, 1889, was…

<p>Judgment of Dismissal — Res Adjudícala.</p> <p>Dismissal by r.he trial court at the end oí plaintiff’s case on the ground that plaintiff’s testimony iailed to show his right to recover, and a subsequent appeal to the supreme court oí the state and an affirmance by that court, is not an adjudication on the merits that can he pleaded in bar when an action on the same wrong is commenced in the lederal courts.</p>

<p>L Filing — 'What Constitutes.</p> <p>Marking a selection of lands made by the state under Act Cong. Sept. 4,1841. filed, with the date thereof, and placing it on the files of the land-office, although not signed by the register, is prima fade a filing of the same; and, if the selection is thereafter approved, the title thereto is vested in the state from the date of such filing.</p> <p>S3. Cu antees op the State.</p> <p>The ripari id rights of a grantee of the state in such case are not affected by the i-bniti of‘an t.ppropriator oí' water, made after such selection, though made before his grant.</p> <p>8. Phi on itv or Appropriation.</p> <p>On the testimony it is found that the plaintiffs, in addition to their riparian rights as purchasers from the state, are prior appropriates of the waters of Pine creek for agricultural and domestic purposes on their lands, to the defendant orthose under whom it claims.</p> <p> {&jth;hux by the Court.) </p>

<p>Summons and Complaint — Variance—Notice.</p> <p>Under the United States circuit court rule 5, which provides that in South Carolina, in all actions other than for the recovery of money, the summons shall contain a notice to the effect that, on failure of defendant to answer within a certain time, the plaintiff will apply to the court for the relief demanded in the complaint, a summons in an action for the recovery of land is insufficient which contains a notice that, on default of answer, the plaintiff will “take judgment against you foi relief demanded in the complaint. ”</p>

<p>1. Master, and Servant — Coupling Cabs — Use oe Sticks — Contract—Waiving Claims eor Injuries.</p> <p>Where a railroad company by rule forbids its brakemen going between freight-oars to couple them, and provides that coupling must he done by means of a stick, the company is not liable for the death of a brakeman who, in consideration of employment by the company, signed a written recognition of such rule, waiving all liability of the company to him for any results of disobedience thereof, when it appears that he understood what he was signing, that the company had provided coupling-sticks for the train, and that the death was the result of disobedience of the rule.</p> <p>2. Same.</p> <p>The paper signed by the brakeman was not a contract by the company exempting itself from liability for its own negligence.</p> <p>3. Same — Authority oe Conductors.</p> <p>Railroad freight conductors do not so far represent the company as to be authorized to rescind rules made by the company for the guidance of its brakemen in coupling cars.</p>

In Bankruptcy. Exceptions to the award of the register. Seitzinger was sued on a bond given to the United States. The register awarded the United States $13,300, the full amount of its claim.

In Bankruptcy. Kxeejitions to register’s report. Appeal of Philadelphia & Reading Railroad and assignees in bankruptcy from decree of the district court. A sale was made in 1877 of the real estate of the bankrupt, but, on account of the failure of the vendee to pay down the full consideration, the legal title was retained in the hands of the assignees until complete payment was made.

<p>1. Peddlees — Licenses—Constitutional Law.</p> <p>Laws N. C. 1889, c. 216, § 24, which provides that “every person, a citizen of the United States, authorized to do business in this state, who, as principal or agent, peddles * * * goods, wares, or merchandise, shall pay a license tax as follows: * * is unconstitutional as to citizens of other states, as regulating interstate commerce.</p> <p>2. Same — Sale by Samples.</p> <p>Where manufacturers of household goods of West Virginia sent their agents into North Carolina to sell goodsiby sample on the installment plan, the goods to be delivered to' each purchaser by the agent afterwards, the fact that the goods were to be delivered by the agent does not make him liable to pay tax as a peddler, as prescribed by Laws N. C. 1889, c. 216, § 24.</p>

At Law. Application of Richard Corcoran for writ of habeas corpus. The act of March 3, 1875, referred to in the opinion, provides that “all prisoners convicted of any offense against the laws of the United States, and confined in execution of the sentence upon such conviction in any prison or penitentiary of any state or territory which has no system of commutation for its own prisoners,” shall have certain deductions from their sentences for good behavior.

<p>1. Patents for Inventions — Novelty—Cash Register.</p> <p>The claim embraced the old elements in a cash-register of keys, key-levers, and rods, each provided with a shoulder, and carrying an indicating tablet, and a supporting bar yieldingly held against the key-levers, and pressed back by the shoulder of a rod when raised, and springing back under it, and upholding it by catching under the shoulder, and depended for its novelty upon the element of a connecting train of mechanism common to the whole series of keys, and interposed between them and the supporting bar, to move the bar away from the shoulders further than it would he moved by the shoulders of the rising rods. Pivoted latches, one for each tablet, had previously been used to move the supporting bar away further from the shoulders than could be done by the shoulders themselves. Held, as the combination gave new capabilities to the device, and was new, the claim embraced patentable novelty.</p> <p>2. Same — Infringement.</p> <p>The patent claimed, in combination with a number of other elements, each old, a supporting wing and connecting mechanism, common to all the keys, and interposed between them and the “supporting wing,” whereby, by the motion of any key, tho wing will be moved back, and the disengagement of the shoulder of any key remaining up secured, and the wing allowed to spring back to catch under the shoulder of the rising key. This mechanism consisted of a bar, held up beneath the front ends of the key-levers; an arm at either end of the bar pivoted to give it a rising and falling motion; atrigger; alink connecting the bar and trigger; an L-bar bearing against the “wing; ” and a trip, provided with a shoulder, and catching onto the L-bar, against which shoulder the trigger works. The defendant replaced the “wing”by a transverse inclined faced supporting bar, working in guides at its ends, and yieldingly impelled towards the upholding bars; and his connecting mechanism consisted of a~eross-bar, lifted by the key, and falling when the key was released; a vertically sliding bar connected therewith, and having at its upper end a lateral projection engaging with a trip on the hell crank lever which bear3 against the supporting bar. Held, that defendant infringed.</p> <p>8. Same.</p> <p>In a suit in another circuit against another respondent on the claim in suit here, the respondent’s “plate and connecting, devices” had been held not equivalents of the corresponding devices of complainant’s patent. Held that, as upon an examination of the former respondent’s device obvious differences between it and the present defendant’s device appeared, the court would not particularize the points of distinction, but would decide independently on the question of infringement here presented.</p> <p>i. Same — Extent of Claim.</p> <p>A clause in the specification stated that “the elbow, (shoulder,) d, of the rod in rising aids in pressing back the wing, I. ” The claim contained no suggestion that the shoulder and the connecting mechanism operated simultaneously to press back the wing. The complainant’s expert testified that such simultaneous action was, for any length of time, impossible. Held, the claim is not to be restricted to mechanism operating simultaneously with the shoulders to move hack the wing, I.</p> <p>5. Same — Infringement—Former Adjudication.</p> <p>The third claim of patent to Campbell, No. 253,506, for a cash-register, was adjudicated in another circuit, (National Cash-Register Co. v. Boston Cash-Indicator & Recorder Co., 45 Fed. Rep. 481,) and no such distinction appears between the device there and the present respondent’s device as would justify a different determination, and the former decision'will he followed, and the device declared not to infringe.</p>

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

<p>Patents for Inventions — Toboggan Slims.</p> <p>The first claim of the Floyd patent, No. 867,386, for a spiral toboggan slide, terminating immediately below the starling point, is void for want of novelty.</p>

<p>Patents for Inventions — Box-Hinge—Novelty—Utility.</p> <p>Letters patent No. 378,861, issued March 6, 1888, to Benjamin T. At wood, Sor a duplex box-hinge, to be placed inside the box, and consisting oí two flanges jointed to a connecting plate, bsnt at right angles at distances from the joints equal to the thickness of the side and cover of the box, so that, whon applied, a smooth face, flush with the outer surface of the box, is presented, and the cover, whon open, turns completely over, and rests against the side, is valid as to novelty, utility, and prior use and discovery, and is infringed by a box-hinge which is its substantial counterpart.</p>

<p>Collision — Sail-Vessels Crossing — Collision Rules, Art. 14, (c.)</p> <p>Collision occurred, on the high seas, on a clear morning, between the ship Rolf and the bark Boyd. The Rolf, hound from Havre to Sandy Hook, was sailing at least two points free, with the wind on her starboard side. The Boyd, bound from New York to Hong-Éong, had the wind on her port side. Her contention was that she was sailing close-hauled. The Rolf’s witnesses asserted that the Boyd also was sailing free. The Boyd did not alter her course. The Rolf put her helm up after collision was inevitable, but was struck on her starboard side. Held, on the evidence, that the Boyd, as well as the Rolf, was sailing free, and hence, under the International Collision Rules, art. 14, (c,) (28 St. at Large, p. 441,) the Boyd was bound to avoid the Rolf, which had the wind on her starboard side, and was liable for her failure so to do</p>

In Equity. Motions to remand and to continue injunction. Petition ox Tillman and others for a writ of injunction against the Coo-saw Mining Company. Motions to remand to the state court, and to continue an order granting a preliminary injunction, and appointing a receiver.

<p>World’s Columbian Commission —Board op Lady Managers — Removal op Secretary-Power ot? Executive Committee.</p> <p>Acts 1st Scss. 51st Cong. p. 02, § 0, authorized and required the World’s Columbian Commission to appoint a board oí lady managers, of such number and to perform such duties as might be prescribed by the commission. The commission, by its eleventh by-latv, providing* ior the appointment of the board, directed that it should havo a chairman and secretary. The board, by its fourth and fifth by-laws, provided that its officers should consist of a president, 9 vice-presidents, and a secretary, “all of whom should hold their office at tho pleasure of the boardand that there should be an executive committee oi 25 members, besides the president; and that this committee, when the board was not in session, should havo “all the powers of the board. ” The commission, at its fourth meeting, authorized tho committee, “in tho absence of the board, to exercise any and all powers which said board might exorcise. ” Hold, that the committee had full power to remove the secretary from office, and that no action oi the commission was needed to make such removal complete.</p>

<p>I, Estoppel — Quitclaim Duran.</p> <p>A daughter bought real estate, and had the deed made to her mother, who after-wards conveyed if by deed, in which her husband did not join, to a corporation, from which plaintiff afterwards purchased it. The consideration was paid by the corporation to the daughter. The plaintiff objected to the title, whereupon the husband quitclaimed to plaintiff for a nominal consideration. The husband knew of the conveyance to the corporation, and did not object thereto, nor assert any title to the premises, until after he had deeded to plaintiff. Held, that both husband and wife, and their subsequent grantee without consideration, were estopped to claim title adversely to the plaintiff.</p> <p>3. Community PiíorniiTr — Separate Conveyance by Wm.</p> <p>Where real estate is purchased by one person, and title taken fei the name of a married woman for convenience only, the grantee is a mere trustee, and her separate deed, by direction of the. cestui que trust, who received the consideration, will pass a perfect tillo, since the property is not comm unity real estate within the meaning of Code Wash. § 2410, providing that the husband has control of community real estate, but shall not sell or convey it unless the wife joins in the doed, and that such deed must bo acknowledged by him and his wife.</p> <p>8. Same — Gists.</p> <p>Under Code Wash. §§ 2400, 2408. providing that property acquired by husband or wife after marriage by gift, devise! or inheritance shall be the separate property of each, respectively; and section 2409, providing that all property otherwise acquired shall be community property, -real estate conveyed to a married person as a gift does not become community property, even though the donor intended it as a gif í to both husband and wife.</p>

<p>In Equity. Bill by H. C. Huiskamp and others against James J. West and others for an accounting.</p>

<p>In Equity. Bill by Philip A. Schley against Charles H. P. Collis, Thomas M. Norwood, James W. Schley, and W. P. Corbett, United States marshal, to enjoin the sale of property by the marshal.</p>

<p>1. Rescission of Contract — Pleading—False Representations.</p> <p>A bill to rescind a contract, which alleges that defendants, being stockholders in a certain corporation, induced complainant to enter into a contract for the purchase of stock, representing that the corporation was sole proprietor oí a secret process for treating metals, which was very valuable; that a patent had been applied for by the company; that it was ready to commence the business of treating metals by this process, and that, if complainant would purchase certain stock, lie would bo employed as president and manager of the company; that, relying upon these representations, complainant paid defendants the amount agreed upon for the stock; that the representations wore false, in that the process had been known for years, patents having been previously granted to other parties; that the company was not ready to commence business, and could not furnish employment to complainant, — is sufficient on demurrer.</p> <p>&. Same — Relief in Equity.</p> <p>Where such bill prays a decree of cancellation of the contract, the stock having been tendered to defendants, and repayment of the sum paid by complainant, the relief can only be had in a court of equity.</p>

<p>1. Suit to Try Title — When Maintainable.</p> <p>A suit in equity to try title and perpetuate evidence thereof cannot he maintained against one in the rightful possession of the land, having an acknowledged life-estate.</p> <p>S. Deed and Mortgage — Construction.</p> <p>A conveyance of title to real estate and a mortgage to the vendor for part of tha purchase money, delivered simultaneously, constitute but one transaction, and tha title of the vendee is from its inception incumbered by the mortgage.</p> <p>8- Foreclosure or Mortgage.</p> <p>The foreclosure of such mortgage for breach of its conditions and sale of the property pursuant to the decree extinguishes an estate in remainder created by the deed to the mortgagor, as well as his life-estate created by the same deed.</p>

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

<p>L Mandate on Appeal — Proceedings in Court Below.</p> <p>Where an appeal to the supreme court from a decree of the circuit court is dismissed, and a mandate issued directing the court to proceed according to right and justice, the court may proceed as if no appeal had been taken, and the time for so doing, specified in the decree, had expired.</p> <p>& Appeal-Bond — Summary Judgment.</p> <p>In admiralty, stipulations for costs and for value upon the release of vessels, and a supersedeas bond on appeal, are securities taken under the order of court; and, wliei-e an appeal has been dismissed, the circuit, court may enter summary judgments against the obligors of such stipulations and bond.</p> <p>S. Same — Stipulation ton Value — Interest.</p> <p>Under a stipulation for value upon the release of a vessel, the obligors are not. liable for interest on the sum stipulated, except on default in complying with the terms of the stipulation.</p> <p>4. Same — Liabilities oe Sureties.</p> <p>Where an appeal was dismissed, without awarding interest or cost, the obligors of the supersedeas bond, who were stipulators for the release of the vessel and for cost?, satisfy their obligations by payment of tho costs awarded by the decree of the court appealed from, the stipulation of release having been complied with.</p>

<p>At Law. On motion for rule for security for costs.</p>

<p>1, Ciierk District Court — Fees.</p> <p>The clerk oí the district court is entitled to fees from the government for making reports to the solicitor of tho treasury, for entering appearances, arraignments, and appointments of supervisors of elections, for making certified copies of such appointments, for issuing prmeipes to jury commissioners, for entering orders appointing attorneys to defend, for filing discharges of government witnesses, for drawing complaints, for entering returns of warrants and subpoenas, and for taking acknowledgments of recognizances.</p> <p>2. Same — Deputy-Clerk—Jury Commissioner.</p> <p>The deputy-clerk at Texarkana is entitled to foes for Ms sorvices as jury commissioner.</p>

<p>At Law. On demurrer to the declaration.</p> <p>Action by Thomas Edwards against the Town of Pocahontas for injuries caused by his imprisonment in a certain jail of defendant which was permitted to become unclean and unfit for use.</p>

<p>L Insurance — Suicide—Presumption of Accidental Death.</p> <p>In an action on a policy of insurance stipulating against liability if assured should commit suicide, whether sane or insane, where the evidence is conflicting and quite evenly balanced as to whether death was caused by the intentional or accidental act of deceased, it will be presumed that death resulted from accident.</p> <p>9. Same — Change of Beneficiary — Insurable Interest.</p> <p>Where the constitution of a mutual benefit insurance association and its policy provide that the beneficiary may be changed at the will of assured, the fact that the beneficiary has no pecuniary interest in the life insured does not render the contract void as against public policy.</p>

<p>At Law.</p> <p>Action by the Minah Consolidated Mining Company, Limited, against John O. Briscoe and Annie E. Briscoe, to recover possession of certain mining lands.</p>

<p>1. Railroad Companies — Municipal Aid — Notice of Election.</p> <p>Act 111. March. 6,1867, granting a charter to the Cairo & Vincennes Railroad Company, provides that counties through which the railroad shall pass may take stock and issue bonds in payment to the company, provided a majority of the legal voters of the county shall vote for the same, at an election to be held under the order and direction of the county court. Act 111. Nov. 6,1819, provides that such elections shall bo called on 30 days’ notice. Held, that the act granting the charter did not authorize an election except on the notice required by statute, and where bonds have been issued, and the authority of the county to issue them is questioned, it devolves on the holder of the bonds to prove that notice of the election under which they were issued was duly given.</p> <p>2. Same — Irresularities—Curative Aot.</p> <p>Act 111. March 6, 1867, § 3, concerning the issuance of bonds by counties to aid in the construction of the Cairo & Vincennes Railroad, provides that all orders for and notices of elections in respect to subscription of stock to said company, in any counties, are hereby declared valid. Const. 111. 1870, provides that no county shall become a subscriber to the capital stock of a railroad corporation, except where the subscription was authorized under existing laws by a vote of the people, prior to the adoption of the constitution. Held, that irregularities of elections held to vote on the question of taking stock, after the adoption of the constitution, were not cured by the act of 1867.</p> <p>8. Same — Recitals in Bonds — Estoppel.</p> <p>A recital in a bond, issued by a county to aid in the construction of a railroad, that the election ordering such bond was held pursuant to law, does not estop the voters of such county from denying the authority of the county commissioners to issue the bonds.</p>

<p>Contract of Sale — Alteration and Modification — Evidence.</p> <p>W. contracted with the cashier of a bank to purchase certain mills, and was allowed to overdraw his account for the purpose of making improvements. After-wards it was proposed to take defendant into partnership, and give him a one-third interest in the property. Defendant and W. accordingly met at the bank, and. after a consultation with the cashier, agreed thatwlien the partnership was formed a one-third interest should be sold to defendant for ST,000, payable 83,500 in cash, and the balance as should bo “agreed by the parties in interest. ” There was testimony that the instrument, which was left with the cashier, was left with him merely as a depositary, and other testimony that it was left as collateral for W.’s obligations. When the partnership was formed, the cashier suggested that defendant advance $3,000 to the partnership, instead of paying $3,500 on the contract; saying to him that them was danger of losing his money if he applied it on the contract; that W. was largely ind ebted to the bank; and that without this money the enterprise would fail. Afterwards the partners again mot at the bank, and the cashier prepared two instruments in modification of the original contract between him and W. The first was an assignment of that contract by W. to the partnership; the second, a contract between tho cashier and the partners, substituting the latter for W. The cashier also executed to the bank an assignment of the contract as modified. Nothing was said about the first contract, and it was subsequently found among the cashier’s papers. Afterwards an action was brought to obtain an adjudication that the legal title was in the bank, subject to the equitable rights of the parties under the second contract. Held, that the second contract was intended as the complete and exclusive agreement between the parties.</p>

<p>1. Interstate Commerce Act — Long and Short Haul Clause.</p> <p>The interstate commerce law (Act Cong. Feb. 1887,) provides (section 4) that a common carrier shall not charge a greater compensation for the transportation of a like kind of property under substantially similar circumstances, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included in the longer distance. Held that, in an action for breach of this section, the fact that the rate for the longer distance was established jointly be-, tween defendant and connecting railroads, does not exempt defendant from liability.</p> <p>3. Same — Reduction to Meet Competition.</p> <p>Evidence that, in the state to which tho longer haul extended, “cut rates” had been instituted by reason of competition between defendant and other companies, is inadmissible unless a ground has been laid therefor in the pleadings.</p> <p>3. Same — Similarity of Services.</p> <p>In order to entitle plaintiff to recover it must appear that the higher rate which he has been charged for the shorter distance was for like services and under sim ilar circumstances.</p> <p>4. Same — Misstatement of Bill of Lading.</p> <p>The fact that the freight for the longer distance was hilled to some point short of the destination of the shorter haul will not bar plaintiff’s recovery, when such freight was intended to be, and was in fact, taken to the destination of the shorter haul.</p> <p>5. Same — Measure of Damages.</p> <p>Where plaintiff is entitled to the same rate for the shorter haul as is afforded other shippers for the longer haul, the measure of damages is the difference between the amounts paid by each for the like service.</p> <p>6. Same — Province of Jury.</p> <p>It is for the jury to determine whether or not they will add interest to the amount of the damages; but, if awarded, it must be estimated from the date of the last shipment.</p>

<p>At Law. Action for unlawfully cutting timber on public lands.</p>

<p>1. Deportation op Chinese.</p> <p>Act Cong. Oct. 1, 188S. (25 St. 504,) re-enacts and extends the twelfth section oí the original Chinese restriction act, (22 St. 61,) which provides for the removal from the United States of any Chinese person found to he not lawfully entitled to enter or remain in the United States to “the country from whence he came. ” The thirteenth section of the act of September 13,18S8, (25 St. 479,) is to the same effect.</p> <p>2. Same.</p> <p>The words “country from whence he came, ” as used in the several acts of Congress providing for the deportation of Chinese persons found to he not lawfully entitled to remain in the United States, do not refer exclusively to the empire of China.</p> <p>8. Same — Review on Habeas Corpus.</p> <p>An order of a United States commissioner that a Chinaman he deported to the empire of China, based upon a finding that that is the country from whence he came, will not be reviewed by the district court, upon a proceeding by a writ of habeas corpus, where the petitioner alleges no illegality in the decision of the commissioner other than error in said finding.</p> <p>4. Same.</p> <p>But the petitioner, being cognizant of important facts relating to persons held to answer for alleged violations of United States laws, the court, on application of the United States attorney, vacated the judgment of the commissioner, and required the petitioner to be held as a witness, and ordered that, when discharged as a witness, he he deported to British Columbia, that being shown by the evidence to he in fact the country from whence he came.</p> <p> {Syllabus by the Court.) </p>

<p>Deportation of Chinese Laborers — Uni.awftji. Imprisonment.</p> <p>A Chinese laborer having left the United States for a visit to China, and being by Act Cong. Oct. 1,1888, (25 St. 504,) prohibited from returning, who nevertheless did return unlawfully via British Columbia, having spent one year as a mere sojourner in that country, and who, upon his arrival in this country, was arrested, and by a United States commissioner sentenced to be deported to British Columbia, and who, being without means to pay the 850 head-tax exacted by the laws of Canada of persons of his class on entering that country, and for that reason debarred from returning to British Columbia, the court, on application of the United States attorney, vacated said sentence, and issued a new writ of deportation to China, for the reasons that the commissioner’s oraer is impossible of execution, and effective only to detain and imprison the defendant in this country unlawfully; and China is the country from whence he came, within the meaning of the act of congress providing for the deportation of Chinese persons found to be not lawfully entitled to remain in the United States.</p> <p> (,Syllabus by the Court.) </p>

<p>Patents for Inventions — Novelty—Metal Roofing Plates.</p> <p>The second claim oí letters patent No. 856,083, issued April 4,1883, to John Walter, for “a sheet-metal roofing plate having one oí its lateral edges formed with two parallel corrugations to form a gurter, and the other lateral edge formed with a broad corrugation adapted to make a seam with corrugations, and a cap for the gutter of a corresponding plate, ” is void for want of novelty, since gutters in rigid roofing plates were previously known.</p>

<p>Patents — Ini'kin&ement—Novelty and Invention.</p> <p>From letters patent No. 372,239, dated October 25, 1887, for an improvement in loom shuttles, It appears that on the end of the shuttle body a flat plate was formerly attached by means of a screw or bolt driven or screwed into the end of the shuttle body; that the constant movement of the shuttle was liable to cause tho wood to split, and the plates to become loose. The improvement is made by extending the sererv through the end of the shuttle, and placing a nut on the end of tho bolt of the screw. Held, that a bill for infringement was demurrable for want of novelty and invention in the patent.</p>

<p>In Equity.</p> <p>Bill by John Francy and others against the Empire Fire Clay Company for infringement of patent. Dismissed.</p>

<p>In Equity. Motion for preliminary injunction.</p>

la Equity. On motion for an interlocutory injunction. Defendants, William J. Matheson and James N. Steele, purchased 2,000 pounds of benzo-purpurine from a German corporation in Berlin, which had the right to make and sell the same under the German patent of the complainant, who also owned the United States patent in suit. The sala was affected through Domeier & Co., of London, England, and the German company had no notice that the goods were intouded for the United states.

In Equity. Motion for preliminary injunction. Action bjr the R. E. Dietz Company and the Steam-Gauge & Lantern Company against the C. T. Ham Manufacturing Company, to restrain the infringement of two letters patent. Preliminary injunction denied. The complainants sue for infringement of two letters patent, No. 287,-932 and No. 450,444, granted to Charles J. Higgins and Lewis P. Letts, November 6, 1883, and April 14, 1891, respectively, for improvements in tubular lanterns.

<p>Patents fob Inventions — Locomotive Head-Lights — Infbingement.</p> <p>The first claim of letters patent No. 235,924, issued December 28,1880, to Irvin A Williams, for an improvement in locomotive head-ligbts, consisting of a combina tion of a burner, a head-light case, and a reflector provided with an opening by which access from the outside of the reflector, and back of its front edge or flange, is afforded for lighting, trimming, or cleaning the burner in the head-light case, is not infringed by letters patent No. 2p2,169, issued August 1, 1882, to Edward Wilhelm, for an improvement in such head-lights, consisting of an opening out of the reflector near its apex behind the burner for letting light into the case for illuminating signals at its sides, since the head-light alleged to infringe has an auxiliary reflector which prevents the use of the opening for lighting the burner, and the light which would incidentally escape through the aperture described in the first patent would not be sufficient to light the signals.</p>

<p>1. Patents for Inventions — Novelty—Refrigerators.</p> <p>Letters patent No. 8,á63, reissued October 22,1878, to George P. Smith and others for refrigerator having an ice-box over the provision chamber, and occupying its entire width, except air-flues at the ends, a false bottom to the ice-box with air passages connected with a central opening in the provision chamber, and air passages leading up from the provision chamber at the ends of the ice-box, are not void for want of novelty, since, though all the elements of such a refrigerator are old, they had never been combined before.</p> <p>2. Same — Validity of Reissue.</p> <p>Where the reissue of a patent is obtained within two years after the issue of the original patent, a defense to an action for infringement that the reissue is void, because for a different invention than that claimed in the original patent, will not be considered, where the original patent is. not put into the case, and there is no proof that the claims of the reissued patent are extended beyond what is justified by the original specifications and drawings.</p>

<p>1. Seamen’s Wages — Failure to Complete Voyage.</p> <p>In a suit against a British vessel by members of her crew to recover wages for a certain voyage, which the shipping articles showed was not completed, it appeared that libelants had endured the usual hardships of a sailor life; that some offenses had been committed against them by the officers; that on arrival at a certain port their demand to receive their wages ivas refused by the master, whereupon they refused to work; and the evidence was conflicting as to whether the captain then ordered them to leave the ship, or to go to work. Meld, that where the British vice-consul, on the facts shown by the shipping articles and the ex <parte statements of libelants, had refused to order payment to them of their wages, the district court of the United States will dismiss the libel.</p> <p>8. Same — Discharge for III Health.</p> <p>The claim of an intervening libelant that he is entitled to be discharged on account of ill health will be dismissed, when it was previously denied by the vice-consul on the ground that the libelant had failed to apply for such relief as he could lawfully demand under'his contract.</p>

<p>1. Collision — Hell Gate — Middle Passage —Eight oe Way — Duty oe Ascending Boat.</p> <p>A tug, with a tow on a hawser, coming towards New York through the middle passage of Hell Gate on the ebb-tide, has the right of way over a tug with a light tow along-side, bound through Hell Gate into the Harlem river, and it is the duty of the latter tug, on an interchange of one whistle between the vessels, to take the eastern channel, or at least to wait below, in a place that is well out of the way of the descending tow.</p> <p>8. Same — Towing on Hawser — Towing Along-Side.</p> <p>The comparative safety of towing through Hell Gate on a hawser and along-side considered.</p>

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

<p>In Equity.</p> <p>Suit David D. Houston against the city and county of San Francisco and numerous land-owners, to recover lands under a Mexican grant. On motion to dismiss the amended bill.</p>

<p>1. Contract — Commissions.</p> <p>A finance company agreed to negotiate the sale of @800,900 of railroad bonds for a commission of 10 per cent, payable in tbe bonds. Afterwards the parties to this agreement entered into an 'agreement with a third person, in which the latter agreed to make a loan to be secured by pledge of part of those bonds, and it was provided that @30,000 of the bonds should be appropriated to the finance company in payment of its claims for commission. Held,, that the second agreement passed title to the §80,000 of bonds to tbe finance company, although it had not then negotiated a sale of the @800,000 of bonds.</p> <p>2. Same — Rescission—Waiver.</p> <p>A contract between the owner of a railroad and a finance company provided for the organization of a new company, of whose directors a majority should be named by said owner, who should he president, and whose bonds should be sold by the finance company. Held, that the failure to elect the former owner president, and to allow him to name the directors, was not ground for his rescinding- tho contract, where the election of the president and directors took place at a meeting at which he was present, and voted for the persons elected.</p> <p>8. Same — Reasonable Time.</p> <p>Said contract did not limit the time within which tho bonds were to be sold. Held, that the failure to sell them within 10 months was not ground for rescinding the contract.</p>

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

<p>Application to Justice Lamar to have him sign a citation and approve a bond on a second writ of error. At chambers, Washington.</p>

<p>1. Contract' — Notice of Termination — Default.</p> <p>A contract which provides that, “ii default shall at any time be made by the parties of the second part in the performance of the covenants and conditions hereof, and if said default shall continue for the space of sixty days after written notice from the parties of the first part to proceed with the performance and conditions, then the said party of the first part may, at its option, terminate the contract, ” cannot be terminated at will by giving the parties notice that they are in default, and that, unless they proceed to carry out the contract, after 60 days the same will be terminated, but there must be a default existing at the time of the notice, which default must continue for 60 days after notice to proceed under the contract and strictly perform its conditions.</p> <p>2. Same — Effect of Default.</p> <p>Where machines were placed on royalties, under an agreement that the party so placing them should receive one-fourth of the royalties paid thereon as compensation, the fact that the party forfeited his right to place other machines under the agreement will not operate to deprive such party of his right to share in the royalties on machines placed by him before the forfeiture.</p>

In Equity. This action was originally brought in the state court by O. N. Foster, chairman, Sunmer county, against the Chesapeake & Nashville Railway Company, the Mississippi Valley Construction Company, and others, for a decree declaring null and void the contract of the county with the defendant railway company, under which the latter was permitted to take charge of the old Cumberland & Ohio road-bed, declaring the county entitled to the actual cash value of the said…

<p>In Equity. Bill to dissolve a partnership, and for an accounting.</p>

<p>In Equity. Bill of Hugh T. Stewart against Addison Allen for specific performance for sale of land. Dismissed.</p>

In Equity. Bill by the Great Northern Railway Company against George H. Walsh and others, as commissioners of railroads of the state of North Dakota, John B. Wineman and others, as inspectors of grain for North Dakota.

<p>In Equity. Bill to restrain the prosecution of suits at law to subject officers of a corporation to liability for corporate debts.</p>

In Equity. Bill by Homer Merriam and others against the Famous Shoe & Clothing Company to restrain the publication of Webster’s Dictionary. Defendant demurs to the bill. Overruled.

At Law. Action in ejectment by the state of New Jersey against Alfred P. Boller, the Staten Island Rapid Transit Railroad Company, and another. Dismissed.

<p>In Equity. Suit to foreclose a mortgage.</p>

<p>Circuit Courts — Jurisdiction—Case Arising Under Federal Laws.</p> <p>In an action to recover certain premises, plaintiff averred that he acquired title “ through a deed of the United States, executed by the commissioner of internal revenue, with the approval of the secretary of the treasury, ” by virtue of authority conferred by Act Cong. June 8, 1872, and that “the validity of said act, and his title thereunder, are the only questions in controversy in this case. ” Held, that these averments brought the case within Act Cong. March 8,1875, conferring on the circuit court concurrent jurisdiction with the state courts in all suits of a civil nature arising under the constitution and laws of the United States.</p>

<p>Nonsuit — Failure to Pat Costs — New Action.</p> <p>Where plaintiff took a nonsuit in a state court after the hearing of the evidence and the giving of the instructions, and then, within the year, reinstitutes the same action in the same court, a motion should be entertained on removal to stay further proceedings until plaintiff has satisfied the costs in the first proceeding.</p>

<p>‘L Township Bonds — Legalizing Act.</p> <p>Act S. C. Deo. 1888, (20 St. 12,) declaring all township bonds theretofore issued in aid of a railroad to bo a debt oí the township, authorizing the ievy of a tax to pay it, and providing that the bonds might he used as evidence of the amount and character of such debt, impressed such debt on the township, proprlo vigore, and it. is liable therefor, although the act authorizing the issue of the bonds was unconstitutional, and the bonds void.</p> <p>8. Same — Interest Coupons.</p> <p>Where an interest coupon covers a period before and after the completion and acceptance of the road, only so much of the interest thereon as was earned after such completion can be recovered under Act S. C. Dec. 1888, (20 St. 12,) providing that no tax shall be levied to pay any interest which may have accrued on such bonds prior to completion and acceptance of the road.</p> <p>3. Same — Voluntary Payment — Set-Oct.</p> <p>Voluntary payments made upon invalid coupons, prior to completion and acceptance of the road, cannot be set off against those maturing afterwards.</p>

<p>1. SiXCMrsiON o» Chinese — Ratimcation cw Tbeaty.</p> <p>Act Cong. Sept. 13,1888, § 1, provides that, “from and after the date of the exchange of ratifications of the pending treaty between the United States and his imperial majesty the emperor of China, * * * it shall be unlawful for any Chinese person * * * to enter the United States, except as hereinafter provided. ” Section 13 provides that any Chinese person convicted of being unlawfully in the United States, before a commissioner, may within 10 days appeal to the judge oí the district court. Held, that section 13 did not depend upon the ratification of the treaty, but became effective from tho date of the approval of the a’ct.</p> <p>2, Same — Evidence oe Poiimub Kesidence.</p> <p>Where a Chinaman arrested for being in the United States unlawfully is identified as a man who has been in the United States for several years, and defendant testifies that he came to tho United States long prior to the passage of the exclusion act, and his testimony shows a knowledge of places in the United States, and events which have occurred during the past 10 years, it is sufficient to overcome presumptions arising from the fact that he was found near the border line, and was a stranger to the officers who made the arrest.</p>

<p>1. Exclusion of Chinese — Ratification of Treaty.</p> <p>Act Cong. Sept. 13,1888, § 1, provides that, “from and alter the date ol the exchange oí ratifications oí the pending treaty between the United States and his imperial majesty) the emperor oí China, * * * it shall be unlawful for any Chinese person * * * to enter tho United States, except as hereinafter provided. ” Section 13 provides that any Chinese person convicted before a commissioner of being unlawfully in the United States may, within 10 days, appeal to the judge of the district court. Meld, that section 13 did not depend upon the ratification of the treaty, hut became effective from tho date of the approval of the act.</p> <p>2. Same — Deportation.</p> <p>Where a Chinese person has been convicted of being unlawfully in the United Slates, and the evidence shows that he entered the United States from Canada, after having been in that country for a time, he must be returned to Canada, under the act which provides that such person shall be removed to “the country whence he came. ” •</p> <p>8. Same.</p> <p>Where a Chinese person is found in the United States and is arrested, hut not on view of his entry into this country, he cannot be removed, unless it is shown that he is unlawfully in this country.</p>

<p>At Law. Action by Daniel H. Chamberlain against Henry C. Men-sing. On motion to set aside summons.</p>

<p>Master and Servant — Feii,ow-Servant3.</p> <p>A complaint wherein an employe, engaged in constructing a railway for transporting coal from defendant employer’s mine, sues for injuries alleged to have been caused by tho negligence of a miner, employed by defendant, while hauling lumber to be used in the mine in timbering up, is not demurrable on the ground that it shows the injury to have been caused by a fellow-servant.</p>

<p>Execution — Place of Wale.</p> <p>Under the law of the United States relating to the sales of property taken under execution in common-law cases pending in the circuit court, defendant in execution is entitled to have the sale of land seized under execution made at the door of the court-house in the county in which it is situated.</p>

<p>At Law. Motion to strike off specifications of opposition to discharge of A. F. Baum.</p>

<p>Habeas Corpus — Immigration—Act op Marcii 3, 1891 — Special Inquiry — Duty op Superintendent.</p> <p>The act of MarchS, 1891, relative to immigration and the importation of contract labor, makes it the duty of the superintendent of immigration, upon the arrival of an immigrant in this country, to take the oath of the, immigrant, or of some other person, as to any facts tending to show prima facie that the immigrant belongs to one of the excluded classes. But thcres fter the immigrant has the right to demand a special inquiry, and at such inquiry to show affirmatively, hy any competent testimony, that, he does not belong to any of the excluded classes. When such inquiry has been had, the decision of the inspection officers is conclusive upon the courts. The remedy, if the decision is wrong, is by an appeal to the superintendent of immigration, and then to the secretary of the treasury.</p>

<p>At Law. On return to writ of halms corpus,</p>

<p>Patents fob Inventions — Infbingement.</p> <p>Letters patent No. 326,357, for an improvement in an arctic buckle, having a tongue hinged between the leaves of a double flexible plate by a cam-shaped hinge-pin entering between the plates, and having its bearings in transverse recesses, closed in front, which has guards across the side edges of the flexible portion of these plates to retain the hinge-pin in its proper bearings in the plates, and also to prevent lateral displacement of the plates, are not infringed by a buckle having the tongue pintle between the top and bottom plates, which are rigidly connected together, with a depressed socket in the lower plate for the reception of the pintle, which is held in place and prevented from sliding by the top plate being squeezed downward, the spring action being obtained by a spring plate fastened within the folds of the base plate, which co-operates with a cam projection from the middle portion of the tongue.</p>

<p>1. Patents fob Inventions — Electric Lamp — Infringement.</p> <p>The first claim of letters patent No. 223,898, issued to Thomas A. Edison, January-27, 1880, for an incandescent electric lamp, in which the leading wires are secured to a carbon filament by cement carbonized in situ, is not infringed by a lamp in which the leading wires are connected with the carbon by metal clamps.</p> <p>2. Same — Patentability.</p> <p>The second claim of said patent, consisting of <i combination of carbon filaments with a receiver made entirely of glass, from which the air is exhausted, and conductors passing through the glass, is not invalid for want of patentable novelty.</p>

<p>In Equity. Bill by Judson Manufacturing Company against the Burge-Donahoo Company for infringement of a patent.</p>

<p>Bale oí Gooh-Will — Right oí Purchaser to Use Seller’s Name.</p> <p>G. & Go., a Paris firm, sold out to plaintiffs their business and good-will in New York, where they had a branch, and authorized plaintiffs to style themselves “G. & Co., K. & Co., successors. ” Held, that the successors of G. & Co. in Paris had the right to establish a branch in New York, and advertise as “G. & Co., of Paris, R., V. & Co., successors, ” though they could not hold themselves out as the successors of the business bought by plaintiffs.</p>

<p>In Equity. Bill to enjoin infringement of trade-mark.</p>

<p>1. Sales — Stoppage in Transito — Eights op Indorsee op Bill op Lading.</p> <p>Since Civil Code Cal. § 3137, declares that all the title to the freight which the first holder of a hill of lading had when he received it passes to every subsequent indorsee thereof in good faith and for value, in the ‘ordinary course of business, with like effect and in like manner as in the case of a hill of exchange, the indorsee or holder of hills of lading received in good faith from the vendee, under an agreement to apply the proceeds of the sale of the goods to the payment of prior advances made hy the indorsee to the vendee, can hold the goods against the -lien or right of stoppage in transitu of the vendor.</p> <p>3- Same — Transpee op Bill op Lading.</p> <p>Plaintiff, an English merchant, sold goods to G., shipping them hy three several consignments and bills of lading in which they were consigned to plaintiff’s agent in New York, or his assigns, and to which were attached plaintiff’s invoice by which the goods were consigned to G. To these papers the agent attached a notice to G. of shipment to him, and a new bill of lading in which he was the assignee, all of which papers and bills of lading were delivered to G. and by him transferred by indorsement to defendants except the first, which was not indorsed, but it and the goods described in it were put in defendants’ possession. Held, that defendants were the lawful holders of the bills of lading, with such rights as the possession of them and of the goods might confer.</p> <p>8. Same — Replevin—Judgment.</p> <p>In replevin hy the shipper of goods against one to whom the consignee has, before any attempt to stop them in transit, transferred the hill of lading as security for advances, defendant, after his right to possession of the goods has been established, cannot he required to render an account of advances and of the proceeds of the sale of the goods, with a view of paying plaintiff the surplus, but plaintiff must seek his remedy in another action.</p>

<p>L Conflict of State and Federal Jurisdiction.</p> <p>A suit in equity in a federal court by a stockholder against a corporation while it is a going concern, and its officers and directors, to restrain certain acts as ultra vires, and to redress abuses of administration, in which a decree is also sought winding up the affairs of the corporation, and in which a receiver is appointed, even if the court would have authority, at the instance of a stockholder, to wind up the affairs of the corporation on the ground of insolvency, does not affect or render void proceedings in a suit in a state court by a judgment creditor of the corporation, to ascertain the validity of, and construe, a deed of assignment by the corporation, to have an account taken of its debts, and, if necessary, an assessment levied on the shareholders, where it appears that the suit in the federal court was dismissed before any action was taken by tbe state court for tbo acquisition and distribution, under its orders, of any property of the corporation,</p> <p>ft Corporations — Stockholders—Proof of Subscriptions — Stook-Books.</p> <p>The stock-hooks of a corporation, when identified, are competent evidence to show that persons named therein as stockholders were such, though evidence aliunde is necessary to show that a particular person, bearing a name mentioned therein, is the person named; and a stock subscription list, the signatures of which are shown to he genuine, is sufficient proof for the purpose, in the absence of evidence in rebuttal.</p> <p>ft Same — Evidence—Confidential Communications between Attorney and Client.</p> <p>A contract between an attorney and certain persons, by which the latter agree to pay the former certain fees for defending suits against them by a certain corporation, in which contract there are admissions that they are stockholders in the corporation, and possession of which has been lawfully acquired by a third person, is not, on tbe ground that it is a confidential communication between attorney and client, inadmissible for the purpose of proving that the parties thereto are stockholders,</p> <p>ft Same.</p> <p>In such case the attorney may be compelled to testify as to receipts of fees from the parties to the contract, for the purpose of proving the genuineness of their signatures thereto.</p> <p>8. Corporations — Proof of Organization — Bhcords.</p> <p>The hooks of a corporation, containing a record of the proceedings had in its organization, are admissible to show that the corporation, as subsequently named, is the same as that otherwise named in taking subscriptions, though the proceedings recorded in the hooks may have been had before an amendment of the charter authorizing organization under the name finally adopted, if the same books, containing sucb proceedings, have been used to record the subsequent proceedings of the corporation after its final organization,</p> <p>ft Same — Evidence—Cash-Book.</p> <p>To show that a certain person is a stockholder in a corporation, entries in its cash-book, purporting to show payments of assessments by him, are not admissible.</p> <p>T. Same — Hearsay.</p> <p>The report of the treasurer of a corporation to the hoard of directors is inadmissible to establish the authenticity of the facts reported, since it is mere hearsay.</p>

<p>L Mandamus to Courts — Levying Taxes — Satisfaction of Judgment against County.</p> <p>Rev. St. U: S. § 916, and rule 34 of tbe circuit court for tbe western district of Missouri, providing that a party who recovers judgment in a circuit court shall be entitled to remedies upon execution and otherwise, similar to those provided by the laws of the state in which-the court is held, do not authorize mandamus to compel the levying of taxes in satisfaction of a judgment against a county, where the laws of the state do not authorize an execution; since mandamus is merely an ancillary proceeding, partaking of the nature of an execution.</p> <p>B. Judgment — Scire Facias — Limitation.</p> <p>Rev. St. Mo. 6013, 6020,-providing that executions may issue upon a judgment at any time within 10 years after its rendition, and that scire facias may be sued out at anytime within 10 years to revive a judgment, but that none shall thereafter issue, cannot be construed to authorize scire facias after the time limited, even though a writ had previously been issued within the time, and returned nulla bona.</p>

<p>Libel an» Slanbeb — Damages.</p> <p>When the proprietor oí a newspaper publishes, without inquiry as to its authenticity, an item from a news agency, falsely stating that a certain named man and woman of high respectability have eloped, that the intimacy between them had for some time excited comment, etc., he is guilty of reprehensible negligence, and, though not guilty of malice, the jury may, in an action against him for libel and slander, award punitive or exemplary damages.</p>

<p>Indians — Jurisdiction oí Crimes on Reservations.</p> <p>The provisions of Act Cong. March 3,1885, (S3 St. at Large, 385,) that all Indians committing certain crimes within the boundaries of any state, and within the limits of any Indian reservation, shall be subject to the same laws, and be tried in the same courts and in the same manner, and be subject to the same penalties, as are all other persons committing any of said crimes within the exclusive jurisdiction of the United States, do not apply to such a crime committed within the sixteenth section of a township, which section, although within the outside limits of an Indian reservation established- in accordance with a treaty with the Indians, was ceded to the state for the use of schools by the act of congress admitting the state into the Union, passed previous to the treaty, and, after the lands were surveyed, subsequent to the treaty, was sold by the state to a grantee, who entered into possession thereof long before the commission of such crime therein. Bunn, J., dissenting.</p>

<p>1. Illicit Distíllins — Forfeiture--Criminal Prosecution.</p> <p>One who has been fined and imprisoned under Rev. SI. TJ. S. § 3257, for illicit distilling, is estopped to claim as Ms own the distillery and spirits forfeited thereby; and such a conviction is not a bar to the proceeding in rerrt required by section 3453 to declare and perfect the forfeiture.</p> <p>a. Same--Former Jeopardy.</p> <p>A conviction, under Rev. Sí. IT. S. § 3296, for removing distilled spirits to a placo other than a distillery warehouse, or concealing them there contrary to law, is not a bar to a conviction under section 3281 for illicit distilling, because the samo are different offenses; and the question of being twice in jeopardy, within Const. TJ. S. Amend. 5, does not arise.</p> <p>8. Same — Proceeding in Rem.</p> <p>Const. IT. S. Amend. 5, declaring that no one shall twice be put in jeopardy for the same offense, does not apply to proceedings in rent; and a conviction, therefore, under section 8296 is not a bar to proceedings nnder sections 3289, 3299, for the forfeiture of spirits found in unstamped packages, or in places other than distillery warehouses, to which they have been removed contrary to law.</p>

<p>L Criminar Law — Evidence—Serf-Crimination—Former Testimony — Prosecution against Another.</p> <p>Rev. St. U. S. § 860, providing that “no discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country shall be given in evidence or in any manner used against him, or his property or estate, in any court of the United States in any criminal proceeding, ” does not render it incompetent to contradict a party who testifies in his own behalf, by showing that, in a prosecution against another, he voluntarily appeared as a witness, and testified differently, where such testimony of itself has no tendency to criminate the witness, hut rather to place the responsibility wholly upon the other. V. S. v. McCarthy, 18 Fed. Rep. 87, and In re Counselman, 44 Fed. Rep. 368, distinguished. TI. S. v. Brown, i Sawy. 531, and State v. Broughton, 7 Ired. 96, followed.</p> <p>8. Same — Proceedings before Grand Jury.</p> <p>A defendant who testifies in his own behalf maybe contradicted by showing that he testified differently before the grand jury as a witness against another, who was charged with the same offense.</p>

<p>Infringement of Patent — Assignment Pendente Lite — Joinder of Assignee.</p> <p>Where the owner of a patent makes an assignment pending a suit by him to restrain an infringement, and for damages, but expressly reserves past damages, and there is no proof or claim of infringement subsequent thereto, the assignee cannot maintain a suit against the defendant, and should not therefore be joined as complainant.</p>

<p>In Equity. Suit for a.n accounting and to enjoin infringement of letters patent No. 338,361, issued August 21,1888, to Joseph W. Hoke.</p>

<p>In Equity.</p> <p>The plaintiff, as the grantee of reissued letters patent No. 7,898, (original No. 190,211, dated May 1, 1887,) for “improvement in apparatus for carrying railroad rails,” sues for an injunction and for damages on account of alleged infringement of the first, second, and third claims of the reissue. The claims read in this wise:</p> <p>“(1) The sliding shoes, links, or carriers, C, provided with projecting catches, in combination with the guide-rails, B 2, the bed, A, and suitable carrying and actuating devices arranged substantially as described, whereby the •upper surfaces of the shoes are located at or below the level of the bed, as and for the purposes set forth. (2) The shoes, links, or carriers, C, having their upper surfaces arranged at or below the level of the bed, and provided with projecting catches, in combination with the bed, the driving chains, and the guide-rails, B 2, substantially as and for the purpose described. (3) The combination with an endless chain, B, subject to expansion by hot rails, of a pulley, t, arranged in a slide bearing, D, held by a movable weight, as shown and described.”</p> <p>Besides disputing the validity of the reissue, the defendants deny both infringement and invention, and, in proof of the prior art, refer to the following list of patents: No. 155,384, dated September 29, 1874, to J. L. Pennock; No. 154,152, dated August 18, 1874, to R. R. Reynolds; No. 124,867, dated March 19, 1872, to While and Wostenholm; No. 148,799, dated March 24, 1874, to J. E. Austin; No. 186,423, dated January 23, 1877, to C. R. Jacoby; No. 159,790, dated February 16, 1875, to P. I). Burgher; No. 164,001, dated June 1, 1875, to A. Hunt'; No. 154,705, dated June 9, 1874, to S. E. Jewett; No. 141,004, dated July 22, 1873, to S. E. Jewett; No. 187,870, dated February 27,1877, to M. Lally; No. 145,908, dated December 23,1873, to W. Sellers; No. 3,077, dated May 8, 1843, to Adams and Hammond.</p> <p>The following were the claims in the original application, as first presented:</p> <p>“(1) An apparatus for conducting rails to the cooling bed, composed of a bed-frame, A, and of movable chains, B, with the carrying shoes, C, for taking up and storing rails substantially in the manner and for the purpose set forth. (2) The movable endless chains, B, running in the grooved guide-rails, B 2, at a level with or slightly below the level of the cooling bed, so as not to interfere with storing rails, substantially as specified. (8) The combination of the endless carrying chains, B, with fixed driving pulleys and sliding and weighted tension pulleys, to provide automatically for the contraction and expansion of the chains, substantially as and for the purpose described.”</p> <p>These claims were rejected by the examiner of the patent-office, — the first and second because “believed to bo wanting in any substantial novelty, in view of what is shown in the patent to While and Wostenliolm, March 19, 1872, No. 124,687;” and the third because “ found to be substantially met in the patent to S. E. Jewett, June 9, 1874, No. 151,-705;” and thereupon the applicant amended by substituting for the three claims the following single claita, which was allowed as the first claim in the original letters:</p> <p>“ The combination with an endless chain, B, subject to expansion by hot rails, of a pulley, 6, arranged in a slide bearing, D, held by a movable weight, as shown and described.”</p> <p>The second claim of the original letters cuts no figure here. As originally presented, the first claim of the application for reissue read as follows:</p> <p>“(1) The shoes, links, or carrier, C, having their upper surfaces arranged at or below the level of the bed, and provided with projecting catches, in combination with said bed, and with mechanism for actuating the shoes, substantially as described. ”</p> <p>This was rejected, because “substantially anticipated in' the patent to J. E. Jacoby, January 23, 1874, No. 186,423;” and thereupon the first claim as quoted was substituted and allowed.</p> <p>The application for-the reissue contained the following disclaimer, which has reference to the While and Wostenholm patent:</p> <p>“In relation to the feature of the sliding siioe, as combined with the carrying chains, 1 would stato that I am aware that a carriage or truck mounted upon wheels, and having its upper surface above the level of the bed, has been heretofore used fora similar purpose in connection with a chain; but this elevated carriage, it will be seen, does not take the rails automatically oil the bed, but necessitates, by reason of its elevation above the bed, the intermediate handling or loading of the rails thereupon. I therefore disclaim this arrangement, and confine my invention with respect to this feature to the shoes, links, or carriers having their upper surfaces at or below the level of the bed, so as to remove the rails automatically by sliding them along the bed, and thus dispense with this intermediate handling or loading of the same.”</p>

<p>3. Patents for Inventions — License—Assignment—Future Improvements.</p> <p>Exhibit F, copied in opinion, construed, and held to be not only a license, but an assignment of the improvements of tho invention that might thereafter bo made, and patents obtained therefor.</p> <p>Assignment of Patents -Agreements Berating Thereto, how Construed,</p> <p>An agreement which recites tho fact of the assignments of previous patents as, a part of the consideration for its execution, although executed the day after the execution of the assignments, should be construed, with reference to said assignments, as constituting part of the same transaction.</p> <p>8. Assignment of Right, Titee, and Interest.</p> <p>Where an assignment is mado by the patentee for certain specified territory, and a subsequent assignment made of all “his right, title, and interest” in the patents, held, that his interest was in and for the states and territories not included in his first assignment.</p>

<p>1. Patents tor Inventions — Validity—Prior Use.</p> <p>Where an inventor experiments in good faith and with reasonable diligence to perfect his invention, and within two years after its completion applies for a patent, Ms patent will not bo defeated by the fact that another constructed and sold a form of the invention, without his knowledge, during the time of the experiments, and before its completion, though more than two years before the application.</p> <p>2. Same — Remee-Vaiae in Fire-Enoine Pomps.</p> <p>Letters patent No. 43,920, granted May 24,1804, to Jamas Knibbs, for a relief-valve in steam firo-ongine pnmps, are valid.</p>

<p>In Equity.</p> <p>Bill by Nathan Manufacturing Company and others against Warren H. Craig and others, for an infringement of a patent. Defendants filed the following demurrer:</p> <p>“These defendants, by protestation, not confessing all or any of the matters and things in the complainants’ amended bill of complaint contained to be true in such manner and form as the same is therein set forth and alleged, do demur to said bill, and for causes of demurrer show that the complainants have not, in and by their said bill, made or stated such a case as entitles them in a court of equity to any discovery from these defendants, or either of them, or to any relief from them, or either of them, as to tho matters contained in the said bill, or any of such matters. That it does not appear by the said bill that the letters therein alleged to have been issued to Kaczander and Buddy and to Kaczander, respectively, of which patents tho complainant Bicks is alleged now to be the owner, are letters patent of the United States. Neither does it appear that the above-named letters patent were issued in the name of the United States of America, nor that they were issued under the seal of the patent-office, nor that they were signed by the secretary of the interior and countersigned by the commissioner of patents, nor that they were delivered to tho patentee. That, furthermore, it does not appear by said bill for what term the letters patent above mentioned were issued, nor does it appear that either of said letters patent granted to the patentee the exclusive right to make, use, and vend the invention covered thereby throughout the United States and territories thereof. And furthermore, that it does not appear by said bill that the improvements in lubricators, alleged therein to have been she subjects of the two patents above mentioned, were not known and used in this country, and not patented or described in any printed publication in this or any foreign country, before the alleged invention thereof by Kaczander and Ruddy and Kaczander, respectively; and that it does not appear that said alleged inventions were not in public use or on sale more than two years prior to the respective applications of Kaczander and Buddy and Kaczander, aforesaid, for letters patent. And further, that it appears by said bill and by tho printed matter filed therewith that the invention described and shown in the patent issued to Warren H. Craig, No. 398,583, is not the same as the invention shown in either the Kaczander and Buddy or Kaczander letters patent, nor any part thereof, but that, on the contrary, it appears that the said letters patent are not interfering patents, as alleged, and the complainants arc not entitled to any remedy in equity, as granted by section 4918 of the Devised! Statutes of the United States, upon the ground that the complainants’ patents and defendants’ patent are interfering patents. And furthermore, that it does not appear by said bill that the defendants Craig and Bobinson are the owners of the alleged interfering patent, as required by the statute aforesaid. And furthermore, that it is not alleged by the said bill that the, invention described in the aforesaid Craig patent is shown and described in the said Kaozander and Buddy patent, No. 337,500. And furthermore, tho defendants aforesaid demur to tho said bill because it appears by tho said bill that the same is exhibited against the defendants thereto for distinct matters and causes, and that so much of the bill as complains of two circulars, thereto annexed, is wholly irrelevant and immaterial, and has no relation to the aforesaid Kaczander and liuddyand Kaczander patents, with which the Craig patent is alleged to interfere. And further, that it does not appear by said bill that the issuing and distribution of said circulars by defendants was in any way wrongful, or entitles the complainants to any remedy in equity. And further, the defendants demur to so much of said bill as alleges that the invention described in the Craig letters patent was made and sold by the complainants before the issue of the said letters patent, and to so much of said bill as alleges the prior knowledge, use, or manufacture of the invention set forth in tiie said Craig patent by various persons in Chicago, Detroit, and elsewhere, especially that part of said bill beginning with the words, ‘and that long before,’ on page 3, line 27, down to the words, ‘ or under its authority,’ page 4, line 8, as wholly impertinent, irrelevant, and immaterial. And the defendants further demur to so much of said bill as avers that said invention shown in said Craig letters patent is of very slight importance, as being wholly immaterial and irrelevant. Wherefore, and for divers other good causes of demurrer, appearing in the said bill, the defendants do demur thereto, and humbly demand the judgment of this court whether they shall be compelled to make any further or other answer to the said bill, and pray to be hence dismissed, with their costs and charges in this behalf most wrongfully sustained.”</p>

<p>1. Shipping — Negligent Loss op Cargo — Limiting Owner’s Liability.</p> <p>A vessel carrying freight ran on a snag and sank in shallow water, near the landing for which she was destined, but, after part of her cargo had been taken off, she was raised, taken to the landing, and the balance of the cargo delivered. Held that, in ascertaining the owner’s liability under Rev. St. TJ. S. § 4283, providing that his liability for the loss of property shipped on the vessel shall not exceed the value of the interest in the vessel and her freight then pending, if the loss be occasioned without his privity or knowledge, the value of the vessel should be determined at the period when the voyage actually terminated, and that this was when she reached the landing, and not just after she had sunk.</p> <p>3. Same.</p> <p>In ascertaining the owner’s liability in such case, he should be allowed a deduction for the expense incurred in raising the vessel.</p> <p>8. Same — Incompetency op Master — Knowledge op Owner.</p> <p>In an action by the owner of a vessel to limit his liability for loss and damage to freight by the sinking of the vessel, under Rev. St. U. S. § 4283, on the ground that the loss was not caused with his privity or knowledge, it was shown that whisky was smelt on the breath of the master of the vessel on the morning it was sunk, and orte or two witnesses testified that ho was drunk on one occasion, when ho was not on duty. All other witnesses testified to his general sobriety, and the owner of the vessel swore he had never known him to be drunk. Liquor was forbidden on the boat, except a small flask in had weather. Held, that it was not shown that the master was an habitual drunkard, within the knowledge, or means of knowledge, of the owner.</p> <p>4. Same — Seaworthiness op Vessel.</p> <p>In such action it appeared that the master on the morning of the disaster gave as his reason for getting ashore that the vessel was leaking, hut both he and his crew afterwards testified that it was not leaking. It was shown that the owner carefully examined the vessel from time to time; that for some time he had carried rice in bulk in her hold. The shipwright who repaired the hole in her hull caused by the accident testified that she was tight, stanch, and seaworthy in other respects. After the hole was stopped, she sailed back to her dock without assistance. HeM., that the vessel was not unseaworthy or leaky within the means of knowledge of the owner.</p>

<p>Federal Courts — Jurisdiction—Federal Question.</p> <p>In au action of ejectment in the United States circuit court, plaintiff alleged that it derived title to the lands from acts and grants of congress, and that defendant denied the validity of those grants. Defendant answered admitting the validity of the acts and grants, and claimed that the land in controversy lay outside of the grants. Meld, that no federal question was presented, and the action must be dismissed.</p>

<p>1. Removal op Causes — Motion to Remand — Evidence.</p> <p>On a motion to remand a case sought to be brought to a federal court from a state court by removal, when it is alleged the record of the state court misstates the facts because of an error on the part of a ministorial officer of the state court in making up the record, parol testimony is competent to show the fact, though the same may contradict the record as made up by the clerk.</p> <p>2. Same — Citizenship op Cokpokations.</p> <p>The St. Louis & San Francisco Railroad Company was first chartered by the state of Missouri. Then it was adopted as a corporation of Arkansas. Such adoption does not take away its character as a Missouri corporation, and, as such, the same is a citizen of the state of Missouri, and, as a citizen of such state, when sued by a citizen of Arkansas in a state court of Arkansas, it may secure the removal of a suit to the federal court.</p> <p> (Syllabus by the Court.) </p>

<p>Kemovai. of Causes — Petitioning Judge tn Vacation.</p> <p>The presentation of a petition and bond for the removal of a cause to the federal court, to a justice of the state yourt in vacation, and, on his declining to act thereon, filing them in the office of the clerk of the county, is not a compliance with the removal act, (Act Cong. March 8, 1887,) which requires that “the slate court” shall have an opportunity to act on the petition; and such proceeding will not effect the removal.</p>

<p>RmiovAi. or Causes — Practice.</p> <p>Where a petition, supported by affidavits, lor tbe removal of a cause from a state to the federal court, on the ground of local prejudice or influence, has been legally granted, the filing of the transcript in the federal court in accordance with the order of removal merely takes the ease there for trial, and does not give plaintiff a right to file affidavits', denying the existence of local prejudice, in support of a motion to remand, and to compel tho court to re-examine tho question: but, before such issue can be made, leave of the court must bo first obtained. Ordinarily the first hearing and determination will be held final.</p>

<p>1. Judgment — Res Judicata — Dismissal “without Prejudice. ”</p> <p>In a suit by a railroad company to recover a large quantity of lands claimed by it, the decree, as to all such lands not awarded by it to the plaintiff, dismissed the bill, without prejudice to the right of said plaintiff to institute and prosecute other suits or proceedings for establishing its right to said lands. Held, that this gave the railroad company the right to bring another suit in equity to establish its right and title to such lands, although its bill in such new suit on its face showed no better or greater equitable right to the land than was set up in the former suit.</p> <p>SL Injunction.</p> <p>Pending such former suit, the land being in demand for settlement, the parties had made a stipulation agreeing upon, a special commissioner, subject to the approval of the court, to take possession of and sell, under the terms of the stipulation, all lands in dispute in that suit; and such commissioner had in the depository of the court a large sum, proceeds of such sales, which, under the stipulation, would be turned over to the defendant in that suit. Held that, as the bill in the second suit showed a primary equity in such lands and their proceeds, and the commissioner was a party defendant thereto, an injunction should be granted therein to prevent the transfer, payment, etc., of any_ moneys, credits, contracts, etc., derived from the sale of the lands claimed therein, notwithstanding defendant’s alleged pecuniary responsibility to pay any decree that might be obtained.</p> <p>8. Receivers.</p> <p>It further appeared that the control of the special commissioner over such fund would cease when the mandate in the former suit should be executed, and that he had in his hands contracts for the unpaid purchase price of lands sold by him. Held, that a receiver of such property should be appointed.</p>

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

<p>Death by Wrongful Act — Parties.</p> <p>Defendants W. & V., having contracted to build a house for the owners, procured defendant 3?., at a particularly small price, to haul files for the building. F., who had no trucks for the purpose, dragged the pilos along the street, in violation of a city ordinance, and by reason thereof killed plaintiff’s intestate. Meld that, in an action against F., the contractors, and the owners, a verdict should be directed for the owners, and the question of the liability of W. & V. should fee left to the jury.</p>

<p>1. Failure to Deliver Telegram — Damages.</p> <p>The party receiving a telegraphic message, the delivery of the same having been negligently delayed by the agents of the company, cannot recover for mental suffering alone, when unaccompanied with other injuries.</p> <p>3. Same — Mental Sueeering.</p> <p>To warrant the consideration of mental suffering as an element of damages there must be such gross negligence on the part of the agents of the company as to indicate a wanton or malicious purpose in failing to transmit and deliver the message. To warrant the consideration of mental suffering in fixing the amount of damages, the mental suffering must be an element of physical pain, or the natural and proximate result of some physical injury.</p> <p> (Syllabus by the Court.) </p>

<p>At Law. Motion to vacate judgment and execution of the court and sales made thereunder.</p>

<p>1. Federad Covets — Jurisdiction.</p> <p>When section 3103 of the Revised Statutes of the United States provides that such a suit as is provided for by said section may be brought in “any court of the United States,” it means in any court of the United States within the territorial jurisdiction of which a defendant may he an inhabitant.</p> <p>3. Samis.</p> <p>By the general law of the United States providing for jurisdiction over the person, to give such jurisdiction two things must concur, — the suit must be brought at the proper place, and the service of summons must be made at a place where the officer serving it has authority to execute a writ of summons.</p> <p>8. Same — Process beyond District.</p> <p>By the general provisions of the law of the United States, the circuit or district courts can issue no process of summons to hejserved beyond the limits of their di» trict</p> <p>i. Same — Service of Process.</p> <p>Independent of positive legislation, the process can only he served upon persons within the district where the same was issued. The court has no authority to issue process of summons to another district, without express authority of the law authorizing it to be done.</p> <p>5. Same.</p> <p>The jurisdiction of a circuit or district court of the United States over the person is acquired only by legal service of process, or by the voluntary appearance of such person.</p> <p>6. Same — Resulation by Congress.</p> <p>Congress may provide for service of process out of the district where issued, as this is a regulation of practice, subject to legislative control.</p> <p>7. Same.</p> <p>Jurisdiction means the power to hear and determine the subject-matter in controversy between the parties to the suit. Jurisdiction to try the cause embraces jurisdiction of the person, of the place, and of the subject-matter. The non-existence of either destroys the right to try.</p> <p>8. Same.</p> <p>“Subject-matter” means the foundation of the suit; that there has been a violation of some right by the commission of some act against the law, which therefore becomes a wrong.</p> <p>9. Same — Dismissal for Want of Jurisdiction.</p> <p>Since the passage of the judiciary act of T875, it is the duty of the court, if it shall appear to its satisfaction at any time after suit is brought, and during the time it is pending, that it has no jurisdiction to try the same, to proceed no further with it, but to at once dismiss it; for the court can exert no power in the way of asserting jurisdiction over the subject-matter when there is no subject-matter, and there is therefore a consequent failure of jurisdiction. The court may, under the above circumstances, dismiss sua sponte.</p> <p>10. Indians — Power to Contract — Attorneys’ Fees.</p> <p>By the act of March 1,1889, congress intended to change the rule as prescribed by section 2103 of the Revised Statutes of the United States, and by said act it provided when a contract with an Indian or an Indian tribe or nation, for the payment of money to an agent or an attorney, was a valid contract, and when money might be legally paid by an officer of the government to an agent or attorney of an individual Indian or an Indian tribe or nation, without violating the law. But the act of March 1, 1889, was only intended to apply to the particular case embraced in the act. Congress, in said act, used apt and appropriate language to change the law as prescribed by section 2103 of the Revised Statutes, as far as the case embraced in the act was concerned.</p> <p>11. Statutes — Repeal by Implication.</p> <p>A repeal of a statute by implication is not favored by the law; nevertheless, it is well settled that when the two acts are not in all respects repugnant, if the later act covers the whole subject of the earlier, and embraces new provisions which plainly show that the last was intended as a substitute for the first, it will operate as a repeal of the same.</p> <p> (Syllabus by the Court.) </p>

At Law. Code Iowa, § 2115, relating to general assignments, provides that— “No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid, unless it be made for the benefit of all his creditors, in proportion to the amount of their respective claims.”

<p>At Law. Indictment of James A. Simmons for embezzlement.</p>

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

<p>1. Patents foii Inventions — Infringement—Objection as to Parties.</p> <p>Where a defendant in a suit in equity for the infringement of a patent makes objection for the first time at the argument on final hearing that there is a defect of parties, in that a person holding an equitable title to the patent is not a party to the suit, and for that reason the suit should be dismissed, but it appears that no such issue is made by the pleadings, and that during the taking of the testimony defendant’s counsel admitted that the title to the patent was in the complainant, such objection comes too late, and will be overruled.</p> <p>%. Same — Admissions by Pleading.</p> <p>Where a defendant admits in his answer, and also in his testimony, that he has infringed the patent in suit, ho is bound by such admission, and will not be allowed on final hearing to withdraw the admission and contend otherwise.</p> <p>S>. Same — Bights of Territorial Assignee.</p> <p>The sale of patented articles by a territorial assignee within his territory does not confer upon the purchaser of such articlos the right to carry them into the territory of another assignee, and there soil them in the usual course of trade, without the consent or license of the latter assignee.</p>

<p>In Equity. Bills by tbe Johnson Company against the Pacific Rolling-Mills Company and the Sutter Street-Railway Company for infringement of patent. Dismissed.</p>

<p>Admiralty Jurisdiction — Libel in Personam — Supplies and Services.</p> <p>The district courts of the United States have jurisdiction of a lihel in personam against the owner of a domestic steam-boat for supplies furnished to the boat and services performed for her.</p>

<p>In Equity. On exceptions to answer to cross-bill.</p>

<p>At Law. Action of ejectment by Marie A. Valentine against S. D. Valentine and others.</p>

<p>1. Federal Courts — Following State Decisions — Dower.</p> <p>The federal court in Montana is bound by the decision of the supreme court ot the state, holding that Laws Mont. (9th Sess.) 1876, p. 63, § 1, which gives a widow as dower one-third of all lands of which her husband was seised of an estate of inheritance during the marriage, unless the same has been relinquished by her, is still in force, although the federal court is of a different opinion, because said law does not appear in the Compiled Statutes, and because of the provisions-of the statute of succession, (section 534, p. 395,) embodied therein.</p> <p>S. Same — Statute or Limitations.</p> <p>The federal court in Montana is bound by the decision of the supreme court of the state, holding that there are no statutes of limitations in Montana applying to actions for the assignment or recovery of dower.</p>

<p>At Law. On rehearing. For former report, see 46 Fed. Rep. 239.</p>

<p>At Law.</p> <p>The plaintiff, a citizen of Montana, brought her suit in ejectment against the defendant Clifford, as well as the Globe Smelting & Refining Company, for the recovery of the following land, lying in the county of Arapahoe, Colo., to-wit: The S. W. £ of the N. E. £ of section 14, and the S. W. £ of the N. E. £ of section 15, all in township 3 S., of range 68 W. Plaintiff in her complaint alleges that her said lands are worth not less than 8100,000; that she is the owner in fee-simple of the same, and entitled to the undisputed possession thereof. She dismissed her suit as to the Globe Smelting & Refining Company. Defendant Clifford, for answer to plaintiff’s cause of action, says that on the 24th of April, 1872, ho in good faith purchased from Louise Stroup and Peter R. Stroup, her husband, the following portion of the land sued for by the plaintiff, to-wit: The S. W. £ of tlie N. W. £ of section 14, in township 3 S., of range 68 W. of the sixth principal meridian, in Arapahoe county, Colo.; that Louise L. Stroup and her husband executed to the defendant a warranty deed for the same, and delivered the same to the defendant, which said deed pretended to convey said land to the defendant in fee-simple; that thereupon the defendant in good faith entered into the possession of the said land by virtue of the claim and color of title aforesaid, to-wit, the said warranty deed, and that this defendant has remained in the peaceable and undisputed possession of said land, under said claim and color of title, from the 24th of April, 1872, to the time of the beginning of suit; that he has paid all taxes assessed against the land from the year 1882 to 1889, when this suit was brought. He further alleges that by reason of the premises, and by force of the statute of the state, he became, and now ip, the owner in fee-simple of the land described in his answer. This is the only land now in controversy in this suit. The acknowledgment of the deed of Louise L. Stroup and Peter R. Stroup is as follows:</p> <p>“TerrUoty of Colorado, County of Arapahoe — ss.: 1, Samuel E. Brown, a notary public in and for said county, do hereby certify that Louise L. Stroup and Peter it. Stroup, who are personally known to me to be the same persons described in and who executed the within indenture, appeared before me tilia day, and personally acknowledged that they signed, sealed, and delivered the said indenture as their free and voluntary act and deed, for the uses and purposes therein set forth; and the said Louise L. Stroup, wife of the said Peter It. Btroup, she owning the said premises in foe, being by me examined at the execution of said deed separate and apart from her husband, and the contents of said deed made known and explained to her by me, then declared that she voluntarily signed the said deed, and is still sat is tied therewith.</p> <p>“ Witness my hand and notarial seal at Denver, in said county, this 24th day of April, 1872. cJamuel E. Brown, hiotary Public.”</p> <p>The statute of Colorado on the subject of acquiring title by possession under color of title and claim of right and payment of taxes is as follows:</p> <p>“That every person in the peaceable and undisputed possession of lands or tenements, including mining claims, under claim and color of title made in good faith, including pre-emptions made in accordance with the laws ot the state of Colorado, or any mining district wherein such property may be situate, who shall for five successive years thereafter continue in' such possession, and shall also, during said time, pay all taxes legally assessed on such lands, tenements, or mining claims, shall be held and adjudged to be the legal owners of said lands, tenements, or mining claims, to the extent, and according to the purport, of his or her proper title or pre-emption. All persons holding under such possession by purchase, devise, or descent, before said five years shall have expired, and who shall continue such possession, and continue to pay the taxes aforesaid, so as to complete the possession of and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.” Section 1694, p. 600, Gen. Laws, and section 1, p. 177, Acts 1874.</p>

<p>At Law. Upon motions to vacate service of writ upon the defendant Robert Garrett, and to quash the writ.</p>

<p>1. Telephone Companies — Dutt to Furnish Service.</p> <p>The respondent, a telephone company, maintaining the only telephone exchange in a city which was connected with telephones in the places of business and residences of its subscribers, refused, on demand, to furnish telephone instruments to relator, a telegraph company, which was operating a telegraph line within the same territory, as part of a large system, except on condition that the instruments should not be used as an adjunct to the receiving and transmitting of telegraphic messages, although respondent had furnished such telephonic facilities to another telegraph company, a competitor with relator in the same city, without such condition. Held, that respondent was a common carrier, offoring to the public the use of its telephonic system for the rapid conveyance of oral messages, and, as such, was subject to the duty of serving all persons alike, impartially, and without unreasonable discrimination; and that the right to equal facilities for the use of such public system extended to telegraph companies as well as to individuals.</p> <p>O. Same — Contract Restricting Use of Patented Device. '</p> <p>Respondent alleged that it was a mere licensee of the owner of patents for the telephones; that it was forbidden by the terms of its license to supply a telephone instrument’to any telegraph company, to be used for telegraphic purposes, without the consent of its licensor; and that it had furnished a telephone to such other telegraph company under a general order from the owner of the patents, in pursuance of a contract between such owner and such telegraph company for an exclusive license to the latter for a term of years to use the telephone in receiving and transmitting messages. Held, that this was no justification for the refusal to comply with the demand of relator, such contract being void as against public policy. The patented device having been employed for a public use, by a common carrier, in the prosecution of its business, relator was entitled to use it on the same terms as others in the same class.</p>

47 Fed. Rep. 578. Petition by Lau Ow Bew for habeas corpus. The petitioner is a Chinese merchant, who came to the United States under the treaty entered into between the United States and China on the 28th day of July, 1868, which treaty is commonly known as the “Burlingame Treaty,” and he established his domicile therein, and continued to reside in the United States until the 80th day of September, A. D. 1890, when he departed for China on a temporary visit to his…

<p>At Law. Application for writ of habeas corpus. On appeal from the decision of tho district judge.</p>

Bill in equity to enjoin infringement of patent, No. 312,220, for ribbed fabrics.

<p>1. Patents fob Inventions — Issue to Assignee — Pbesumption.</p> <p>Where a patent has been issued to the inventor in part, and in part to one named as his assignee, it will be presumed that the assignment was properly made and entered of record in the patent-office, as required by Rev. St. tr. S. § 4895, providing that patents may be issued or reissued to the assignee of the inventor, but that the assignment must be first entered of record in the patent-office.</p> <p>2. Same — Reissue to Guabdian of Insane Patentee.</p> <p>Where the patentee of an article has become insane, the reissue of the patent may be made in the name of his guardian, though the law (Rev. St. D. S. § 4916) in terms only authorizes a reissue to the original patentee, or his assigns, or, if he be dead, to his executor or administrator; and the reissue would be valid if issued to the insane patentee himself.</p> <p>8. Same.</p> <p>Even if the reissue of a patent to the guardian of an insane patentee were invalid, because the law does not in terms provide for reissue to the guardian, no one but the patentee could complain.</p> <p>4. Same — Laches.</p> <p>Where a patentee of an invention, after the issue of his patent, has become of poor health, and so mentally deranged as to be unable to attend to business, and afterwards insane, a reissue of the patent to his guardian two years and seven months after issue of the patent is not invalid, on the ground of laches in not applying for the reissue within two years.</p> <p>6. Same — Reissue—Validity.</p> <p>The reissue of a patent for an invention is not invalid on the ground that the specifications have been amended and the claims expanded beyond the original patent, where the changes consist merely in describing what was suggested in the original drawings and specifications, or in explaining the functions or effect of the mechanism.</p> <p>•6. Same — Mining-Machines.</p> <p>Reissued letters patent No. 9,408, October 12,1880, to Sarah J. Harrison, guardian, etc., (original patent No. 198,610, December 25,1877, to Jonathan W. Harrison, etc.,) covering a coal-mining machine for under-cutting and sheafing in, or producing cuts or excavations preparatory to wedging out or displacing coal, are not void for want of novelty.</p> <p>7. Same.</p> <p>Reissued letters patent No. 9,439, November 2,1880, to Sarah J. Harrison, guardian, etc., (original patent No. 219,090, September 2,1879, to Jonathan W. Harrison, etc.,) for a mining-machine, consisting of a cylinder, mounted on two wheels, and connected directly with their axle, so that it may be oscillated by the oscillation of the axle, for the purpose of drilling and cutting in mining coal, are not void for want of novelty.</p> <p>■8. Same — Handles to Machine.</p> <p>Letters patent No. 232,792, September 28, 1880, to George D. Whitcomb and others, for improvements in mining-machines, and consisting of the application of handles to a mining-machine by which to manipulate and move it, are void for want of novelty, in view of the prior use of such handles on plows.</p>

<p>1. Patents eoe Inventions — Novelty-—Mining-Machines.</p> <p>Letters patent No. 267,047, to George D. Whitcomb, November 7, 1882, for a coaimining machine, covering (claim 3) the combination of an inclined platform and mining-machine, the platform sloping towards the work of the machine, so as to hold it to its work, and assist in overcoming the recoil from the blow of the pick, is not void because it required no inventive genius, nor for want of novelty, either because of the use of an inclined platform in artillery to prevent the recoil of the gun, or otherwise.</p> <p>2. Same — Infringement.</p> <p>Letters patent No. 335,328, to George D. Whitcomb, February 2,1886, for a mining-machine, covering (claim 6) a main air-inlet, and inlet and exhaust ports of the valve-motor, having their valves arranged at the rear face of the machine below the top thereof, is not infringed by the use of a machine which acts by the direct pressure of the air upon the cylinder.</p>

<p>Patents for Inventions — Infringement—Temporary Injunction.</p> <p>Where the owner oí a patent for an invention used in ear-couplings is not merely a user of the patent, but licenses its use by others, a railroad company will not be temporarily enjoined, in a suit for infringement and damages, from using such infringing' couplings as it already has in use, where the parties are wide apart in their views as to the proper amount of royalty, but may be enjoined from the use of any others which may infringe.</p>

<p>L Salvage — Amount or Compensation.</p> <p>A steam-lighter, upon her machinery becoming totally disabled, went ashore in New York harbor. A steam-tug, by request, came to her assistance as it was passing, and without danger to itself pulled her off, and towed her to a place designated. The lighter was not in imminent danger, and would in time have found other assistance. The tug was only engaged one and a half hours in the work, and its other business was not interfered with or injured. Held, that 8100 was a sufficient allowance as salvage for the services of the vessel.</p> <p>S. Same — Costs.</p> <p>A libel for salvage was filed by the owners only of a vessel, and not also on behalf of the master and crew. When the answer was filed a tender was made and refused, which by the decree was held sufficient and awarded libelants, with costs up to the time the answer was filed, less the amount of claimants’ costs since that time. The decree also provided that a certain amount should be paid the master and crew on the libel being amended so as to make them parties. Held, that the master and crew should not be allowed any costs except clerk’s fees which accrued since the filing of the answer, since they were not parties to the libel before its amendment;' and that, as they were not responsible for the refusal of the tender, their compensation should not be diminished by claimants’ costs.</p>

In Admiralty. Libel by Ira Bursley against the steam-ship Marlborough and her master, John ICiddle, for damages to cargo, caused by alleged unseaworthiness of ship and alleged improper conduct and negligence of master.

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

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

<p>Saxe under Trust-Deed — Right to Redeem.</p> <p>A bond for 833,000, given for a loan of 816,000, was secured by a deed of trust, by which the trustee was empowered to sell upon non-payment of any semi-annual installment of interest, or the sale of the land for taxes. Pending its sale in consequence of such defaults, 'the debtor and creditor entered into negotiations for a settlement; the latter stating that he wanted his money merely, and not the land. A written stipulation was prepared by. their attorneys, and, although it was not signed by the creditor, it was understood that he would do so, and that the title would be purchased by him at the sale, aud held only as security for the debt, and that the debtor would be allowed to redeem. The latter, relying upon this understanding, did not attend the sale, or procure the attendance of bidders, and the land was sold en masse to the creditor for $8,500, although it was divided into ten lots, and consisted of two tracts, fronting on difierent streets, and was worth at least $30,000. Meld, that the debtor should be allowed to redeem.</p>

<p>In Equity. Suit to enjoin collection of taxes. On demurrer to bill.</p>

At Law. Action by an employe against employer to recover damages for personal injury caused by negligence. Upon the trial before the court and a jury, after the introduction of plaintiff’s evidence, defendant moved for a peremptory instruction to the jury to return a verdict for the defendant, on the ground that the evidence was insufficient to justify a verdict for the plaintiff. Motion granted.

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

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

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

<p>L National Banks — False Report to Comptroller — Intent to Deceive.</p> <p>Rev. St. TI. S. § 5209, makes it a misdemeanor for officers of a national bank to make false entries in any book, etc., with intent to injure, deceive, or defraud certain persons or associations. Helá, that such entries must be willfully and intentionally false, and mere clerical mistakes, or an arbitrary exercise of discretion in keeping the books, not amounting to an abuse thereof, are insufficient to constitute the offense.</p> <p>8. Same — False Entries by Clerk.</p> <p>In an indictment of a national bank president under Rev. St. IT. S. § 5209, for making false entries in a report to the comptroller of the currency, it is no defense that such entries were made by a clerk, and verified by the president without actual knowledge of their truth, since it was his duty to inform himself, and especially is this the case as regards items showing assets and liabilities.</p> <p>8 Same — Indictment and Proop — Variance.</p> <p>Where an indictment under Rev. St. IT. S. § 5209, alleges the making of false entries in a report of a national bank to the comptroller of the currency, with intent to injure and defraud the banking’ association and the stockholders thereof, and to deceive its directors, it is not sufficient to prove an intent to deceive other persons, such as creditors, depositors, the comptroller, or the public.</p> <p>4. Same — Evidence op Bank Examiiter.</p> <p>The testimony of a bank examiner who is a skilled accountant is admissible to show false entries; but it must consist of knowledge derived from his investigation of the books, and not of conclusions based partly unon statements of officers and clerks of the bank.</p> <p>6. Same — Evidence.</p> <p>In determining defendant’s guilty intent, the jury should consider his relation to the bank as an officer and a shareholder, assistance given the bank by him in. its embarrassment by the loan of his individual money, and whether he had any motive for making false entries, together with circumstances that may have induced him to do so, such as an examination by the officers of the bank’s affairs at the time the entries were made.</p> <p>G. Same — Good Character.</p> <p>Where defendant’s fraudulent intent is not sufficiently shown, evidence of his good character would resolve the doubt in his favor, but not if his guilt was conclusively proven.</p>

<p>5. Patents jtob Inventions — Jnekingembnt—Contractos and Subcontiuotob.</p> <p>Where one who has contracted to erect a building lets a portion oí the work to a subcontractor, and in the prosecution oí their respectivo parts each infringes patent-rights of another, both are liable as joint infringers.</p> <p>S» Same — Yalidity—Gonstbuction and Illumination o» Buildings.</p> <p>Letters patent No. 268,412, granted August 29,1882, to Peter H. Jackson, for “improvements in the method of illuminating basements;” No. 269,863, granted January 2,1883, to the same, for “iron and illuminating stairs;” and No. 302,338, granted July 22, 1884, to the same, for “improvements in the construction of buildings, are valid.</p>

<p>1. Circuit Courts — Jurisdiction—Alienage op Party — False Allegation op Citizenship — Dismissal.</p> <p>In an action by an alien in the United States circuit court for a district of Miehifan against a Missouri corporation, a false allegation that plaintiff is a citizen of [icbigan will be presumed to bo a mistake of tbe pleader, as the court would have jurisdiction in either case, and the suit will not he dismissed under Act Cong. March 3,1875, which provides that if in any suit commenced in a circuit court it shall appear that it does not involve a dispute or controversy properly within the court’s jurisdiction, or that the parties have been improperly or collusively made or joined, for the purpose of creating a case cognizable therein, the suit shall be dismissed without further proceedings.</p> <p>A False Allegation op Citizenship — Amendment.</p> <p>Plaintiff may amend his declaration, to show that he was an alien when the action was brought, instead of a citizen, as alleged. Conolly v. Taylor, 2 Pet. 555, 565, followed.</p> <p>8. Jurisdiction — District op Dependant’s Residence — General Appearance — Waiver.</p> <p>Act Cong March 3,1887, § 1, forbidding suit to be brought in federal courts against any person elsewhere than in the district “of which he is an inhabitant,” confers a personal privilege, which is waived by general appearance and plea in bar.</p>

<p>At Law.</p> <p>This is a common-law action, commenced in a state court November 12, 1863, and afterwards removed by writ of certiorari to the circuit court of the United States for the southern district of New York. October 3, 1887, after trial thereof, and recovery therein by the plaintiffs, judgment was entered in favor of the plaintiffs for $50,611.98, damages, and $690.50, costs and disbursements, making the aggregate of $51,302.48. Thereafter the defendants sued out a writ of error, taking the case to the supreme court. April 20, 1891, the supreme court, without, on the argument of the case, having had presented to it by counsel for its consideration the subject of these costs, filed its decision, (139 U. S. 694, 11 Sup. Ct. Rep. 683,) by which it decided that “the judgment is reversed, and the cause remanded, with a direction to the circuit court to enter judgment for $1,500, and interest from November 16, 1863, and for $12,894.95, with interest from January 8, 1881.” A mandate was thereafter issued to this court which provides:</p> <p>“On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said circuit court in this cause be, and the same is hereby, reversed, with costs [of the supreme court;] and that the said defendants recover against the said plaintiffs, George B. W. Bartels et al., for the costs herein expended, and have execution therefor. And it is further ordered that this cause be, and the same is hereby, remanded to the said circuit court, with a direction to enter judgment for $1,500, and interest from November 16, 1863, and for $12,894.95, with interest from January 8, 1881. You therefore are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the opinion and judgment of this court, as, according to right and justice and the laws of the United States, ought to be had; the said writ of error notwithstanding.”</p> <p>Upon presenting the mandate of the supreme court to the circuit court, for the purpose of entering judgment as therein directed, the question arose whether or not the plaintiffs were entitled to enter, as part of such judgment, the aforesaid $690.50, costs and disbursements of the circuit court.</p>

At Law. Action to recover damages for wrongful death. On motion for an order requiring an answer to be filed to written interrogatories attached to petition.

At Law. Appeal from board of United States general appraisers, F. Salomon, on August 28, 1890, imported by the Glenrath into the port oí New York certain old india rubber boots and shoes, which were duly entered at the port of New York, and classified and assessed by the collector of customs at that port, at 25 per centum ad valm-em, under Schedule N, par. 454, of the tariff act of March 8, 1888, as “articles composed of india rubber, not specially enumerated or provided for…

<p>1. Tbade-Marks — What will be Protected.</p> <p>The word “ Celluloid, ” being a new and arbitrary word coined by plaintiff, and applied to goods of its manufacture, is a valid trade-mark, in the use of whion plaintiff is entitled to be protected, though the term has become so generally known as to have been adopted by the public as the common appellative of the article to which it is applied.</p> <p>3. Same — What Constitutes Infringement.</p> <p>But the use of the term by defendant as applied to an article of his manufacture, “Celluloid Starch,” is not such as to induce the public to believe that the starch was connected with plaintiff or a product of its manufacture, and hence it is not an infringement of its trade-mark entitling plaintiff to an injunction.</p> <p>8. Same — Injunction.</p> <p>The fact that a method might be devised by which plaintiff’s article, “ Celluloid, ” could be converted into a substitute for starch, and the possibility that it may in the future desire to make such an article, and put it on the market, are too remote to entitle it to an injunction against such use of the term by defendant.</p>

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

<p>Chinese — Restriction Act — Re-entry oe Laborer — Evidence oe Identity.</p> <p>A Chinese laborer, claiming to be one Tom Mun, who left the United States before the passage of the restriction act, (Act Cong. May 6,1882,) showed by the books of a steamer that Tom Mun sailed from this country March 15,1882, and also by the books of a shoe factory that an employe of that name had been paid off a few days prior to that date. A white Chinese collector testified that he knew such laborer at the shoe factory as Tom Mun, and “guessed” that he left in 1878 or 1879. Chinese witnesses also testified as to his identity. It appeared, however, that the court had already allowed another person to re-enter the United States as the Tom Mun mentioned. Held, that the identity was not established, and such laborer was not entitled to land.</p>

<p>At Law. Indictment for embezzlement. On application to be admitted to bail.</p>

<p>In Equity. On bill for infringement of patent.</p>

<p>1. Patents foe Inventions — Reissues—Acquiescence and Estoppel — Dissolution of Interference.</p> <p>The specifications of letters patent No. 295,302, issued March 18, 1884, to Charles F. Stock for an improvement in traps for throwing targets to be shot at by marksmen, state that “the invention consists in the employment of a novel device at the outer end of the thowing arm for holding the target during the swing of the arm, and to release it at the proper time for causing it to be properly projected into the air.” Claim 1 is for “the combination with the throwing arm * * * of a clip for holding the target, arranged to automatically drop below the upper surface of the throwing arm for releasing the target, substantially as described. ” October 13, 1884, said Stock applied for another patent, claiming — First, “a clamping device pivotally secured to the end of the sending arm, provided with a mechanism to automatically release the target;” and, second, a combination of this clamping and releasing device with “means for imparting to said target a positive axial rotation as it leaves the trap. ” This application was accompanied by Stock’s affidavit that he was the original inventor of the improvement sought to be patented, and “that the same had not been patented to him or to others with his knowledge or consent, * * * and that he does not know and does not believe that the same was ever known or used prior to his invention thereof. ” These claims and various modifications thereof were rejected on the ground that they were anticipated by letters patent No. 301,908, issued to F. Marqua July 15, 18S4. Stock having died, his administrator acquiesced in this rejection. Afterwards the administrator applied for a reissue of the original patent to Stock on the ground that the real invention was not secured therein, and in claims 3 and 4 made substantially the same claims as those which had been rejected in Stock’s application of October 13, 1884. An interference was disclosed between these claims and the Marqua patent, but was subsequently dissolved on the administrator’s motion, and reissued patent 10,867 was granted substantially as applied for. Eeld, that in the absence of sufficient proof of accident, inadvertence, or mistake in omitting these claims from the original patent, and in view of Stock’s affidavit, and his administrator’s acquiescence in the rejection of the same claims in the application of October 13,1884, the administrator was estopped from setting up the same claims in the reissue, and hence claims 3 and 4 of the reissued patent were void.</p> <p>8. Same — Inadvertence and Mistake — Reissue.</p> <p>The action of the patent-office in granting the reissue was not conclusive that there was actual accident, inadvertence, or mistake in omitting the claims for the pivotal device and the improvement in axial rotation from the application for the original patent, and the court is free to investigate that question.</p> <p>8. Same — Anticipation.</p> <p>The claim for the “pivotal device” was anticipated by the invention of A. H. Hebbard, who conceived and reduced to practice a “pivoted” target-holding device prior to December 8,1882.</p> <p>i Same — Prior State of Art — Infringement.</p> <p>Claim 1 of the reissue was for a combination with the throwing arm of a target-throwing device of “a clip' for bolding the target, arranged to automatically drop below the surface of the throwing arm for releasing the target, substantially as described” in the specifications. By the specifications it appears that the means of releasing the target consists of a slot at the end of the throwing arm, into which the clip is designed to fall, in order to “drop below’’the surface thereof. Held that, in view of the prior state of the art, Stock was not a pioneer inventor, whose claim should be broadened by construction, and hence the slot was an essential element of his claim, and the same was not infringed by defendants’ patent, which accomplished the same result by other means.</p>

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

<p>1. Seaman — “Lay” on Whaler — Evidence.</p> <p>A shipwrecked seaman was taken on hoard a whaler in the Arctio ocean. Tha master did not put the seaman’s name on the shipping articles, as he was requested to do, and he testifies, without corroboration, that the lay allowed the seaman was 1-170. The latter told the master that his lay on the wrecked vessel was 1-100, when it was in fact 1-125; but he testifies that the master believed him, and allowed him 1-100, which is corroborated by the engineer of the wrecked vessel. It was admitted that shipwrecked seamen taken on board in the Arctic ocean usually receive a higher lay than those shipped at the commencement of the voyage. Held, that the seaman was entitled to a lay of 1-100.</p> <p>3. Same — Offset—Evidence.</p> <p>In a libel of a whaling vessel for a seaman’s lay in the bone and oil taken, the master sought to establish an offset for a pair of boots furnished libelant. He produced no books of account containing entry thereof, and his evidence was uncorroborated, while libelant denied that the boots were furnished him. Held, that the claim should be disallowed, as it was in the nature of a counter-claim, and required a preponderance of proof to establish it.</p> <p>8. Same — Discharse.</p> <p>When a seaman was not discharged or expelled from the vessel against his protest, but left it under a mutual agreement with the master in consequence of their disagreement, he is not entitled to share in oil and bone taken after he left the ship.</p>

<p>Salvage — Compensation—Stranding—Services op Tugs.</p> <p>The bark Don Carlos, worth $15,000, with a cargo of nitrate of soda, worth $34,000, the freight being $4,000, stranded on South beach, near the entrance to the bay of San Francisco. News of the disaster was telephoned to San Francisco, and libel-ants immediately sent their tug-boat Alert to the scene. At her arrival, there was a rolling swell, sufficient, combined with the ebb-tide, to swing the bark around broadside to the shore, when it was reasonably certain that she would soon become so banked with sand as to render removal impossible. The captain of the Alert refused to render assistance, except on the master’s agreement to pay $8,000 for pulling him off, which, after trying to obtain better terms, he agreed to do. Thereupon a hawser was made fast, and the tug began pulling, and prevented the bark from swinging. Soon afterwards the Relief and the Reliance, two powerful tugs, also owned by libelants, arrived, and the master of the bark agreed to pay $2,000 additional for their assistance. In about two and one-half hours they succeeded in pulling her off. She was than towed into the bay, and grounded upon the mud flats. The value of the tug Alert was $25,000, of the Reliance, $30,000, and of the Relief, $50,000, and the ordinary expense of maintaining the three in readiness for salvage service about $7,500 a month. None of the tugs were in any danger. Held, that the demand for S8,000 for the services of the Alert was exorbitant, and the agreement should be disregarded, and that 85,500 should be awarded for the services of the three tugs, to be apportioned among the ship, freight, and cargo, according to value.</p>

<p>1. Coimsion — Between Steamebs — Fog—Excessive Speed.</p> <p>The steamer S. came into collision with the steamer A., striking her port paddle-box, breaking the timbers, tearing the shaft from its bed, and forcing it several feet aft. Though there was a dense fog at the time, and the S. was aware of the A.’s proximity, having heard and answered her signals to pass port to port, she proceeded at her usual speed of nine miles an hour until the A. became visible through the fog, when she ported her helm and reversed, hut without avail. Held, that the S. was in fault for this collision.</p> <p>S. Same — Lateral Motion ünder Port Helm.</p> <p>The contention of the S. that the collision was caused by the A.’s action in putting her helm hard a-port while going ahead, so as to swing her stern to port, which forced her laterally on her center against the stem of the S., is untenable, as being contrary to natural philosophy.</p> <p>S. Same — Stopping in Fog — Fault.</p> <p>The situation of the A. — in a dense fog, with the S. approaching from ahead, but invisible — being one requiring extreme caution, in which the rules of navigation require a vessel to slow up or stop in order to avoid the possibility of collision, it cannot be held that stopping was a fault, though it in fact materially contributed to bring the vessels together.</p> <p>i. Same — Going Ahead Instead op Astern</p> <p>But the A. was in fault for going ahead as soon as the S. hove in sight, though she did it with helm hard a-port, so as to swing to starboard, and present the timbers of the paddle-box as a fender to the approaching blow; for by going astern, as the rules of navigation require in such a situation, under a starboard helm, she would have swung the same way, and equally have presented such fender to the S.</p>

<p>K'i’iovAi. of Causes — Colorable Assignment — Petition.</p> <p>A petition for the removal of a cause alleged that the plaintiff, a citizen oí tha same state with defendant, was only a nominal party; that the claims sued on belonged to a corporation of another state, which assigned them to plaintiff by an instrument requiring him to collect them, and hold the proceeds “in trust for the use and benefit of the parties owning the same. ” Heló,, on motion to remand, that while this does not conclusively show that the assignment was merely colorable, yet the cause should be retained, with leave to plaintiff to plead that he was a bona Jide trustee to sue and collect, and distribute tbe proceeds to numerous parties equitably entitled to share therein, on proof whereof the cause would be remanded.</p>

<p>In Equity. Bill for injunction and appointment of a receiver.</p>

In Equity. On order to show cause why defendants should not be enjoined from removing certain articles from a brewery purchased by complainant.

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

<p>Fraudulent Conveyances — Participation or Purchaser — Evidence.</p> <p>A merchant in failing circumsl anees, being indebted to a bank for $1,200 to $2,000, in consideration thereof, and of $8,000 in cash, executed notes to it for $10,000, and secured them by a chattel mortgage on his stock of goods, which constituted his only known property, and was worth from $15,000 to $17,000, and the next day the bank took possession thereof. On the merchant’s part, this transaction was entered into with intent to hinder and delay his creditors, and obtain a favorable compromise. The president of the bank, who knew his insolvent condition, and that his creditors were pressing him, testified that, on inquiring whether the $8,000 should be placed to his credit in the bank, the merchant said he was afraid some of his creditors would attach it, and that for a like reason he objected to receiving a certificate of deposit, and asked for the cash, which was given him. Held, that the bank was not a bona fide purchaser, and the money realized by it from the sale of the goods was subject to the claims of creditors.</p>

<p>In Equity. Bill to redeem land from mortgage.</p>

In Equity. This suit affects the title to a 60-acre tract of land, situated in the city of Tacoma, which title is, and for 20 years past has been, clouded by reason of blundering attempts of the owners to convey portions of said land, and interests therein. The object of the suit is to obtain a decree defining the interests of the several parties, remove the cloud, and partition the property among the owners, so as to give to each his portion thereof in severalty.

<p>1. Railroads — Interstate Commerce — Discrimination between Connecting Lines —Ownership of the Competing Line.</p> <p>The Iron Mountain Railroad from St. Louis, Mo., to Texarkana, Ark., and with its connections reaching into Louisiana and Texas and across the continent, has a branch from its main line at Bald Knob, Ark., to Memphis, Term. The Little Rock & Memphis Railroad runs from Little Rock, Ark., where it has a physical connection with the Iron Mountain road, to Memphis, Tenn., on a line Í5 miles shortetthan the other. At Memphis each road has equal facilities for connections with and transfers to roads running into the states east of the Mississippi river, if the Little Rock & Memphis facilities be not superior, as the bill alleges. The East Tennessee, Virginia & Georgia Railroad, with its leased line of the Memphis & Charleston Railroad, runs from Memphis eastwardiy into several states and to the sea-board, formerly, and before the building of the Bald Knob branch of the iron Mountain road, tho Little Rock & Memphis road had traflic arrangements with the Iron Mountain and East Tennessee, Virginia & Georgia, roads for the through ticketing of passengers both ways. Since the building of its Bald Knob branch the Iron Mountain road refuses to recognize through tickets over the Little Hock & Memphis road to or from points in the Iron Mountain system beyond Little Rock, and the East Tennessee, Virginia & Georgia road declines to keep such tickets on sale, or to offer its passengers a choice of routes, because the Iron Mountain will not take the tickets; but it does issue on equal terms through tickets over either route to Little Rock itself. Held that, as between the Iron Mountain and Little Rock & Memphis roads, this was not a discrimination between connecting lines, prohibited by the interstate commerce act, but only a legitimate offer of the superior facilities of a through line over a local line in competition for the through travel, and that the ownership of a rival line authorized such preference of one’s own road; that, as between the Little Rock & Memphis and the East Tennessee, Virginia & Georgia roads, there was not any unjust, undue, or unlawful discrimination, because the facilities offered by the Iron Mountain, of a longer and through track to points not reached by the other road, were superior to those offered by the local and shorter road, and, until the Iron Mountain would make through rates with it that- would afford equal facilities in this respect, there could be no through tickets sold usefully by the East Tennessee, Virginia & Georgia road, and hence there was no unlawful discrimination in the transaction.</p> <p>8. Same — Jurisdiction.</p> <p>The special remedies provided by the interstate commerce act are cumulative, and not exclusive of the general remedies given by the judiciary act conferring jurisdiction of all suits and controversies arising under an act of .congress, regardless of any diversity of citizenship between the parties.</p>

<p>l. Accounting — Laches—Breach op Trust.</p> <p>Plaintiff’s attorney, to sell certain land in Minnesota and to pay taxes thereon, conveyed it in plaintiff’s name to a third person, and took a reconveyance thereof to himself, bought in an outstanding title arising from an execution sale, and allowed the land to be sold for taxes at various times, and bought in the tax-titles. Thereafter lie conveyed the title thus acquired. All this he did with little or no attempt at concealment. Each transaction was recorded, and, in most instances, promptly. During 20 years subsequent to the execution of the power of attorney, and 10 years after the last-named conveyance, plaintiff made no inquiries about the land, paid no attention to it, and furnished no money for the payment of taxes or other expenses. It does not appear that the land was productive. Meld, that plaintiff was guilty of laches, and could not have an accounting from the attorney, or recover the lani from his grantees.</p> <p>S. Same — Federal Courts — State Statutes op Limitation — Trusts.</p> <p>A suit in a United States court for the district of Minnesota, against said attorney and his grantees, to recover the land, is barred under St. Minn. 1878, c. 66, § 6, subd. 7, which provides that “actions to * * * compel an accounting, when the trustee has neglected to discharge his trust, or has repudiated the trust relation, * * * must be brought within six years;” since United States courts, while not controlled by the law and practice governing state courts, will follow them when justice will be subserved thereby.</p> <p>3. Same — Excuse por Delay — Absence prom State — Poverty.</p> <p>Neither absence from tbe state nor poverty or inability to pay tbe expenses of litigation will excuse the owner’s laches.</p> <p>i. Pleading — Alleging. Conclusions.,</p> <p>It is not a sufficient averment of the attorney’s ability to pay taxes out of the proceeds of the land to allege merely that the land was of great value, and the proceeds were ample, and more, to pay all taxes and expenses, hut the facts should be alleged.</p> <p>8. Sons.</p> <p>An allegation that the land was sold under “a pretended judgment, *_ * * which was informal, irregular, and void, ” is not sufficient to raise any question of tho validity of tho judgment.</p>

A.t Law. The petition in this suit was filed March 27, 1889, under the provisions of an act of congress approved March 3, 1887, entitled “An act to provide lor the bringing of suits against the government of the United States,” (chapter 359, 24 St. at Large, 505,) and claims fees for services rendered to the United States by plaintiff' as commissioner of the circuit courts of the United States for this district from August 20, 1886, to December 31, 1888, a period of nearly…

<p>1. United States Consuls — Clerk Hike — Action on Bond.</p> <p>In an action on the official bond of a United States consul, tho condition of which requires him to deliver up all fees and moneys which shall come to his hands, as provided by Rev. St. U. S. § 1697, be is not liable for money paid, under the direction of the state department, to a clerk appointed by the president; although Bev. St. U. S. § 1696, provides that the only allowance to any vice-consulate or consular agency for expenses shall be an amount sufficient to pay for stationery and postage on official letters.</p> <p>2. Same — Accounting—Money Paid by Mistake.</p> <p>Where a United States consul has paid over to the United States moneys belonging to himself under an impression that they were fees belonging to the government, he is entitled, at any time before final settlement, to be credited with the amount thereof.</p>

<p>Life Insurance — Policy Payable to Children — Rights of Administrator.</p> <p>Where a policy of insurance on the life of a wife is made payable to her ohildren, and she dies before any children are born, her executor cannot maintain an action at law for the amount of the insurance.</p>

<p>At Law.</p> <p>Petition of Arthur P. Selby, clerk of the United States circuit court, brought under the act of March 3, 1887, which permits suits to be brought against the United States to recover moneys paid to the first comptroller of the treasury.</p>

Habeas corpus to release a United States deputy-marshal from imprisonment by virtue of state authority for using force and threats in preventing the recapture of a prisoner.

<p>Obstructing Justice — Assaulting Witness After Case Dismissed.</p> <p>Rev. St. II. S. | 5399, providing that every person who by threats or force endeavors to intimidate or impede any witness “in any court oí the United States, ” or by threats or force endeavors to impede the due administration oí justice therein, “shall be punished,” etc., does not apply to tho act oí ono, who, two months after a prosecution against him before a United States commissioner has been dismissed, beats a person who had appeared therein as a witness against him.</p>

<p>t. Indians — Crimes on Reservations — Jurisdiction of United States Courts.</p> <p>Act Cong. June 30, 1834, (4 St. at Large. 729,) defines tbe territory which should be known as tbe “Indian Country,” including therein tbe region now included in tbe Dakotas, and provides that the laws of the United States relating to the punishment of crimes within the “exclusive jurisdiction of the United States shall be in force in the Indian country, ” except as to crimes committed by Indians against each other. By treaty of April 19, 1858, (11 St. at Large, 743,) with the Yankton tribe, whereby certain lands were ceded, and 400,000 acres reserved to the Indians, the United States agreed to protect them in their possession thereof, and also in “their persons and property therein during good behavior.” Act Gong. March 2, 1861, (12 St. at Large, 239,) creating the territory of Dakota, provides that nothing therein contained shall be construed to “impair the rights of persons or property pertaining to the Indians in said territory, and that all the Indian lands therein shall be excepted out of its boundaries and jurisdiction” until title is extinguished by treaty with the United States. Act. Cong. Feb. 22,1889, providing for the organization of tbe states of North and South Dakota, declared that “the people of said states do agree and declare .that they forever disclaim all right and title * * * to all lands lying within said limits, owned or held by any Indian or Indian tribes, ” and that the same “ shall be and remain under the absolute jurisdiction and control of tbe congress of the United States.” Held, that the United States district court has jurisdiction of an indictment against a white man l'or stealing the horses of an Indian on the Yankton reservation, under Act Cong. April 80,1790, (Rev. St. § 5356,) which provides for the punishment, of larceny committed “within any of the places under the sole and exclusive jurisdiction of the United States. ”</p> <p>8. Indictment — Venue.</p> <p>An indictment for a larceny committed “in the county of Charles Mix, in the district aforesaid, and at a place in said county of Charles Mix within the Groat Sioux Indian reservation and within the Indian country, ’’sufficiently alleges the venue, although the name “Great Sioux Reservation” is more properly applicable to another Sioux reservation in the state.</p>

<p>Customs Duties — Foreign-Buii/t Vnssm, — Light Monet — Cokmotor’s Certificate.</p> <p>A foreign-built unregistered vessel, which has been purchased by an American citizen, the bill of sale having been thereafter recorded in a United Slates customhouse, after proof of the citizenship of the owner, and which carries the collector’s certificate to such facts, is in possession of such regular document as is required by section 4226, Rev. St., and is exempt from the payment of light money, under section 422», Rev. St., on entering a port of the United States.</p>

<p>In Equity. Application for injunction against infringing a patent for cultivating plows.</p>

<p>In Admiralty. On appeal from clerk’s taxation of costs.</p>

<p>In Admiralty. Libel in rem to recover damages for personal injuries caused by the alleged negligence of the master.</p>

<p>In Admiralty. Libel for seamen’s wages and their transportation home.</p>

<p>In Admiralty. Libel for damages to a river barge.</p>

<p>1. Federal Courts — Criminal Jurisdiction — Bribery.</p> <p>An indictment for offering an internal revenue officer a bribe to set fire to a distillery situated within the limits oí a state is not cognizable by the federal courts, since there are no common-law offenses against the United States; and Rev. St. U. S. § 5151, which makes it a crime to offer to bribe an officer of the United States with intent to influence him to do or omit to do any act in violation of his lawful duty, applies only to acts within the official functions of the officer.</p> <p>2. Same.</p> <p>The fact that an internal revenue officer has the right, by virtue of his office, to enter the distillery at any time, does not bring the offense within the cognizance oí the federal courts.</p>

<p>Motibn to Dismiss for Want of Jurisdiction of the Court.</p> <p>Assuinpdt to recover $150, the amount of an alleged discounted note, by Robert J. Yardley, receiver of the Keystone National Bank of Philadelphia, against. Janies Dickson.</p>

In Equity. Suit to assert the lien of certain equipment bonds,, brought by the Adelbert College of Western Reserve University against the Toledo, Wabash & Western Railway Company, the Wabash Railway Company, the Wahash, St. Louis & Pacific Railway Company, James R. Jcsup, and Isaac II. Knox, as trustees, George I. Seney, trustee, Solon Humphreys and Daniel A. Lindley, as trustees.

<p>Examiners — Power to Adjourn Hearing.</p> <p>The action of an examiner in adjourning the bearing after a witness is tendered for cross-examination is final, and, if the party wbo offered tbe witness refuses to produce him for cross-examination, his testimony in chief will be suppressed.</p>

<p>In Equity. On demurrer to bill.</p> <p>Suit by Albert T. Boman and another plaintiff against Mary E. Boman to set aside a will.</p>

<p>L Bile oí Review — Payment oí Costs.</p> <p>The circuit court having dismissed a bill on the merits, plaintiff took an appeal to the supreme court, which dismissed the same because the amount was insufficient to confer jurisdiction, without formally deciding that the circuit court was without jurisdiction. The mandate required appellant to pay the costs. He thereafter brought a bill to re'view the decree of the circuit court, and have the cause dismissed for want of jurisdiction, instead of on the merits. Meld, that he was not entitled to a hearing thereon until he paid the costs pursuant to the mandate, or gave an excuse for not doing so; and that Act Cong. March 3,1875, (18 St. at Large, 473,) requiring the circuit court not to proceed further with a cause if at any time it should appear that it did not involve a dispute within its jurisdiction, did not relieve him from this obligation.</p> <p>2. Same — Pleading—Staycoí Proceedings.</p> <p>The rule requiring payment of costs on a bill to review is one of procedure rather than of jurisdiction, and hence failure to aver payment or excuse is no ground of demurrer, but should be taken advantage of by motion to stay proceedings.</p>

<p>1. Community Property — Rights of Non-Resident Wife.</p> <p>The community property act of Washington Territory, 1879, making lands purchased by the husband the common property of husband and wife, applies as well to property within the territory, acquired by non-residents, as that purchased by residents.</p> <p>2. Decree of Foreign Court — Transfer of Title — Estoppel.</p> <p>A decree for divorce, entered by the state court of Oregon, provided that the husband should pay the wife the sum of 85,000 in satisfaction of her interest in such of the husband’s lands as lay without the state, on condition that the wife should accept such sum in full satisfaction of her interest in those lands, and file a conveyance to the husband of such interest, with the clerk of the court. The wife caused execution to be issued on the decree, and sold the husband’s lands in Oregon to satisfy the same, which lands the husband redeemed by paying the amount of the execution to the wife. No conveyance or release of interest in the Washington lands was ever executed by the wife, as directed by the decree. Held, that such decree of the state court of Oregon could not operate to transfer plaintiff’s interest in community lands in Washington, nor estop her from recovering them from her husband’s widow by a second marriage.</p>

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

<p>Carriers of Passengers — Defective Ticket — Ejection—Forje of Action.</p> <p>A passenger paid the price of a railroad excursion ticket from Detroit to Quebec and return, and accepted from the company’s agent; without reading it, what the latter represented to he such a ticket. The agent, however, inadvertently stamped npon the return coupon the word “Detroit” above the word “Quebec, ” instead of vice versa, as was necessary to make it valid. On the homeward journey the conductor refused to receive the ticket, notwithstanding the passenger’s explanation, and the latter, having no means to pay the cash fare, was put off at a way station, and suffered much humiliation and inconvenience. Held, that he was not restricted to assumpsit for the breach of contract, hut might sue the company in tort for damages.</p>

<p>1. Waiver of Limitation within Which to Sue on a Policy of Fire Insurance.</p> <p>A 12-montbs limitation in a policy oí fire insurance, within which the assured must sue for a loss, is not waived by conduct of the insurance company calculated to make the former believe that the loss will be paid, provided such conduct ceases, so as to leave a reasonable time witbin which to sue; and 7 months of the 12 is considered ample time.</p> <p>2. Limitation from the Date of Fire.</p> <p>A limitation of 12 months from the date of the fire, within which to sue on a policy of fire insurance, commences to run from such date. The ruling on this point in II Sawy. 270, 25 Fed. Hop. 296, followed.</p> <p>(Syllabus by the Cowrt.)</p>

At Law. By stipulation of parties, a jury in this case was waived, and the trial of the cause submitted to the court on tho following agreed statement of facts: “(1) Defendant is a banking incorporation, as alleged.

At Law. The plaintiffs imported and entered at the port of New York six several importations of women’s dress goods between March 26, 1889, and February 6,1890.

At Law. The firm of Austin, Nichols & Co. imported and entered at the port of New York on November 3, 1890, certain “sweetened chocolate,” upon which the collector levied and assessed duty at the rate of 50 per cent. ad valorem, as “chocolate confectionery,” or assimilating thereto, undei the provisions of paragraph 239 and section 5 of the tariff act of October 1, 1890.

<p>At Law.</p> <p>This was an application by the importers under the provisions of section 15 of the act of congress entitled “An act to simplify the laws in relation to the collection of the revenues,” approved June 10, 1890, for a review by the United States circuit court of a decision made in this matter by the board of United States general appraisers, affirming the decision of the collector of the port of New York in the classification for duty of certain merchandise entered at said port by different entries during the months of August and September, 1890. The merchandise was classified for duty by the collector as “hemmed cotton handkerchiefs,” and duty was assessed thereon at the rate of 40 per cent, ad valorem, under the provisions of Schedule I (Tariff Ind. New, par. 325) of the tariff act of March 3,1883. The importers protested, claiming that the goods were dutiable at 35. per cent, ad valorem under the same schedule (Tariff Ind. New, par. 324) of said tariff act, as “manufactures of cotton not specially enumerated or provided for.” Testimony was taken on behalf of the importers under an order of court before one of said board of United States general appraisers pursuant to the provisions of the above cited act of June 10, 1890, and it was shown that the articles in question were cotton handkerchiefs having a border of one inch and more in width, which was turned down and stitched fast to the body of the handkerchief after a certain number of threads had been drawn out at the head of such fold or hem, the stitch used being an open stitch, and that the result ■was an article known to the trade and commerce of this country in March, 1883, and prior thereto, as a “hemstitched handkerchief;” and that the term “hemmed handkerchiefs” or “hemmed cotton handkerchiefs,” as used in the trade at that time, did not include the articles in question, which were always designated as “hemstitched.” It was admitted by the witnesses for the importers that the noun “hem,” the verb “to hem,” and the verb “to hemstitch,” had no other or different meanings in trade and commerce at that time from the meanings of those words as given in the standard dictionary of the English language. The government was not able to contradict the trade testimony to the effect as given above, but contended that the commercial designation was not controlling in this case, but that the words “hemmed handkerchiefs” must be taken in their ordinary meaning, as understood in the English language; and that, upon all the testimony, the hemstitch was only an addition to or ornamentation at the head of a hem.</p>

<p>At Law.</p> <p>The appellant was arrested at Port Huron, July 9, 1891, while attempting to enter the United States, and brought before United States Commissioner Harris, who found that he was unlawfully in the United States, and ordered that he be removed to China. Appellant was remanded to jail to await deportation, and within 10 days from his conviction took this appeal to the judge of this court, under the provisions of section 13 of the act of congiess of September 13, 1888, entitled “An act to prohibit the coming of Chinese laborers into the United States.” The commissioner made no recurn of the testimony taken before him, but simply transmitted his finding with the order for the removal of appellant to China. Upon the hearing before the district judge it was admitted that appellant was unlawfully in this country, but it was insisted that the order for his deportation to China was erroneous, and without support in the evidence. There was put in evidence on the hearing a certificate issued by the comptroller of customs at Vancouver, B. C.. bearing date May 21,1891, permitting Chong Sam to return to Canada. It was also shown that appellant had been arrested at Detroit, June 23, 1891, for being unlawfully within the United States, and on that charge was brought before Commissioner Graves, who, finding the offense established, directed his removal to Canada, as “the .country whence he came.” The testimony taken on the hearing before the district judge was uncontradicted that appellant had carried on the business of a laundry-man for several months at Chatham, Ont. There was no evidence when he lauded in Vancouver, or left China, and nothing tending to prove that when he departed from that country he did so with the purpose of coming to the United States.</p>

<p>Petition for Writ of Habeas Corpus to release a naval paymaster’s clerk from imprisonment by virtue of the sentence of a court-martial.</p>

<p>Patents for Inventions — Dissolution oe Injunction.</p> <p>The owner of a patent, after long and expensive litigation, secured an injunction against infringement, and afterwards the defendant was allowed to amend his answer by setting up that the invention was covered by a Spanish patent, and that the same had recently expired, which allegation, if proved, invalidates plaintiff’s patent. Plaintiff denied both allegations. Held, that defendant was not entitled toa dissolution of the injunction ponding the hearing on the issues thus raised.</p>

<p>In Equity. Bill for infringement of patent. On exceptions to answer.</p>

<p>>. Patents for Inventions — Invention—Acquiescence.</p> <p>Letters patent No. 292,861, issueól February 5, 1884, to George B. Boss, for a railway brake-shoe, adapted to get its friction from those parts of the wheel not worn by the rail, and constructed with two grooves, one closely embracing the flange of the wheel, and reaching down on the inner face thereof, in a lug which presses against the tread at the base of the flange, the other being about the width of the tread of the rail, thus relieving this portion of the wheel from wear, possesses patentable invention over the English patent of May 11,1875, to James Steel, for a shoe possessing substantially the same features, except that the lug of the flange groove came only part way down the flange, and did not bear on the tread at the base thereof, since the Boss patent has”been acquiesced in by most of the railroads in this country, and the shoe adopted after attempts by some of them to use the Steel shoe, which was found unsuccessful by reason of wearing a groove in the flange.</p> <p>2. Same — Infringement—Sufficiency of Bill.</p> <p>Where a bill for infringement of a patent alleges that the patentee “became and was, as your orators now believe, the original and first inventor of certain new and useful improvements, ” and is sworn to by three of complainant’s agents, this is a sufficient showing that the patentee was the original inventor to sustain the suit, and no affidavits to that effect are required.</p> <p>3. Same — Averments of Bill — Prior Use and Sale.</p> <p>In a bill for infringement of a patent, an averment that the improvement claimed was not in public use or sale in this country, with the patentee’s “.consent and allowance, ” more than two years prior to his application, is insufficient to show his right to a patent, under the unqualified requirement of Bev. St. U. S. § 4886.</p>

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

<p>Patents fob Isvkntioxs — Piuok State of Art — Dyeing Bbooms.</p> <p>Honors patent No. 159,409, to William S. Hancock, lor an improvement in broom» by dyeing the broom-corn so as to prevent destruction by rats and mice, and to obviate the injurious effects to the worker in broom-corn from the sulphur with which the corn is usually bleached, and also to designate different qualities oí the corn by different colors, describes, in the specifications, particular compounds to form the colors, but states that the inventor does not limit himself to these ingredients. Halil that, as the art of dyeing is not new, tins patent must be limited to the particular ingredients named.</p>

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

<p>1. Salvage — Towage Services — Exorbitant Agreement.</p> <p>The ship Jessomene, on a Saturday night, after vainly attempting to enter the Golden Gate in a furious gale, put to sea, but, failing to weather Point Reyes light, came to anchor in 18 fathoms of water. During the night she dragged her anchors into 11 fathoms, and then lay within 150 yards of sunken rocks, where loss of ship and crew would have been almost certain had she drifted upon them. Sunday morning she again began to drag, when the maintop-gallant masts were cut away, after which she held fast. Monday afternoon the gale had somewhat abated, but was still dangerous, when the tug Relief appeared, and demanded $18,000 for towing her in. After vainly trying to secure better terms the master acceded to this demand upon the tug’s threat to leave them. Held, that the agreement was made under compulsion, and would not he sustained.</p> <p>3. Same — Compensation.</p> <p>The Relief was in some siightdanger of fouling her hawser in her propeller, and was assisted by the tug Active, also owned by libelants, which carried messages between her and the Jessomene, and accompanied them into the harbor. The ship, cargo, and freight were worth abouo §89,000, the Relief §50,000, and the Active §57,-000. Libelants also maintain three other powerful tugs always in readiness to assist vessels in distress, the whole being at an expense of about §7,500 per month. They sometimes sent their tugs out for vessels reported to be in distress, without success. Held, that they were entitled to 85,000 as salvage.</p>

<p>1. Collision — Too and Steam-Barge — Duty to Stop.</p> <p>On a clear, still day, tbe steam-barge Canisteo was passing down the Niagara, river, in the channel between White’s island and the main shore, intending to round the foot of the island, and get a tow from its opposite side. As she reached the foot of the island, she sighted the steam-tug Wales, with a tow, about opposite the middle of the island, descending the middle of the main channel, which is here about '2,300 feet wide. The Canisteo signaled that she wished to pass next to the island, to which the Wales assented. As the Canisteo entered the main channel, she put her helm hard a-starboard, but the swift current prevented her from swinging up stream as quickly as she otherwise would have done, and she struck the ' Wales when about mid-stream, and under considerable headway. Mold, that it was the Canisteo’s duty to know, before giving the signal, that she could make the turn, and, it appearing that after finding she could not make it she might have avoided the collision by reversing her engines, she was clearly in fault.</p> <p>S. Same — Failure to Give Room.</p> <p>It appearing that the Wales might have avoided the collision without slacking her speed, by putting her helm hard a-starboard, thus giving more room, she too was negligent, and must bear half the damages. *</p>

<p>1. Who are Seamen — Wages—Exemption prom Attachment.</p> <p>One who ships for a fishing voyage, to be paid at the rate of S25 for each 1,009 fish caught by him and $1.50 per day for unloading, is not a “seaman, ” within the meaning of Rev. St. TJ. S. § 4536, which provides that no wages due or accruing to any seaman shall be subject to attachment or arrestment, etc., since this section occurs under title 53, which treats of “merchant seamen,” and merchant seamen have been distinguished from “fishermen ” in all the legislation of congress.</p> <p>2. Same — Exemption op Wages.</p> <p>Rev. St. D. S. § 4536, providing that “no wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment, ” does not apply where an execution, issued in an action against a person claiming to be a seaman, is served upon the owners of the vessel, and payment is enforced from them by an order made in proceedings supplemental to execution.</p> <p>3. Garnishment — Debt not Due.</p> <p>When the wages of a fisherman are to be paid “ within ” 30 days after the arrival of the vessel in port, they are not exempt from garnishment after arrival and before the expiration of that time.</p> <p>4. Same — Irregularities in Proceedings.</p> <p>Where the wages of a fisherman have been garnished by a justice court for a debt justly due, and payment compelled from the vessel-owners by proceedings in aid of execution, which they have in good faith resisted by all proper means, a court of admiralty will not compel them to again pay the amount to the fisherman, although the proceedings in the justice court were reversible for error.</p>

<p>Libel in Rem — When Maintainable — Failure to Show Lien.</p> <p>A libel in rem. set forth a contract with the owners of a schooner whereby she was to engage in a certain employment, and be commanded by libelant, who, on certain conditions, was to acquire a one-fourth interest in her, and averred performance on libelant’s part, and a subsequent sale of the vessel for a specific sum, one-fourth of which libelant sought to recover. Meld, that no cause for a lien was shown, and hence a libel in rem could not be maintained.</p>

<p>1. Collision between Steamers — Passing in River — Sudden Sheer.</p> <p>The steamer Nedjed, drawing 19 feet of water, in charge of a tug, and also using her own engines, was passing down the Savannah river on the south side, opposite Fig island light, followed by the steamer Macon. The channol at that place is nearly straight, and about 400 feet wide, and large vessels frequently pass each other there. The Macon signaled that she desired to pass on the north side. Whether the Nedjed assented or warned her not to pass is uncertain. As the Macon was about to pass, the Nedjed sheered to port, and ran across her course. The Macon backed, and soon after the vessels collided, the Nedjed almost immediately afterwards grounding on the north shore mud flats. Held, that the Nedjed alone was in fault, as it was her duty, under Itpv. St. IT. S. § 4283, regulating the passage of vessels running in the same direction, to keep in her course.</p> <p>8. Same — Excuse eor Sheering — Improper Loading.</p> <p>The fact that the Nedjed was improperly loaded, had a list to starboard, and did not steer well, did not exonerate her, as that was her own fault or misfortune, and was not known to master of the Macon. If she could not be steered, she should have been stopped.</p> <p>5. Same — Collision in Backing.</p> <p>Although it was an error for the Macon after thecollision to lio so near astern as to be in any danger of being struck by the Nedjed when she backed off from the mud flat, yet the error did not amount to a fault in regard to such second collision, in view of the confusion incident to the former collision, and the fact that the Nedjed was unlawfully in the Macon’s course.</p> <p>4. Same — Warning not to Pass.</p> <p>When two steamers are proceeding in the same direction, and there is room for the one astern to pass, she is not bound to heed a signal not to do so, when no danger is apparent.</p> <p>6. Same — Excessive Speed — Municipal Regulation.</p> <p>The fact that a steamer, attempting to pass another going in the same direction down the Savannah river, was going faster than allowed by the ordinances of Savannah, does not affect her liability for the consequences of a collision, when such speed did not in any way canse the collision.</p>